
    Mark M. Dittenfass, Respondent, v. David Horsley and Others, Appellants, Impleaded with Universal Film Manufacturing Company and Others, Defendants.
    First Department,
    March 3, 1916.
    Pleading—suit to compel specific performance of contract for sale of stock — defense of failure to pay transfer tax not frivolous—right of defendants to have plaintiff reply to such defense.
    Where in a suit for the specific performance of a contract for the sale and delivery of certain shares of stock, allegations by the defendants, as a defense, that no stock transfer tax had been paid or canceled in connection with the agreement, are not frivolous, and the defendants are entitled, under section 516 of the Code of Civil Procedure, to have the plaintiff reply, in order that they may by an appropriate motion test the validity of the defense.
    The discretion of the court under section 516 of the Code of Civil Procedure to compel a reply to new matter pleaded as a defense is freely exercised when it can be seen that the new matter if true is of such a character as may properly avoid surprise at, entirely prevent, or shorten the trial.
    Appeal by. the defendants, David Horsley and others, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1916, denying their motions to compel plaintiff to reply to new matter set up in their amended answers.
    
      Samuel F. Moran, for the appellants.
    
      F. Wright Moxley, for the respondent.
   McLaughlin, J.:

This action was brought to procure a judgment decreeing the specific performance of an alleged contract for the sale and delivery of certain shares of the capital stock of the Universal Film Manufacturing Company.

The contract is alleged to have been entered into between the defendant William Horsley and one Lewis J. Selznick, plaintiff’s assignor, and the defendants Powers and David Horsley are alleged to have purchased the stock subsequent to the execution of the contract referred to — copy of which is annexed to and made a part of the complaint. Powers interposed a separate answer, in which he alleged, among other things, as a fourth defense, “That no stock transfer tax was ever paid and no stock transfer tax canceled on. account of or in connection with any alleged agreement between defendant William Horsley and said Lewis J. Selznick for the sale or purchase of the shares of capital stock of the Universal Film Manufacturing Company mentioned in the amended complaint herein. ” The defendants Horsley interposed separate answers in which they alleged as a seventh defense substantially the same facts set forth in the fourth defense of the defendant Powers. Motions were made by Powers and the Horsleys to compel the plaintiff to reply to such defenses set up in their respective answers. Each motion was denied and the appeal is from such orders. The appeals were argued together and since they involve a determination of the same question they may properly be considered together.

The Code of Civil Procedure (§ 516) authorizes the court, in its discretion, to compel a reply to new matter contained in an answer and therein set up as a defense by way of avoidance. This discretion, as a general rule, is freely exercised when the - court can see that the new matter, if true, is of such a character as may possibly avoid surprise at, entirely prevent, or shorten the trial. (Schweitzer v. H. A. P. A. Gesellschaft, 149 App. Div. 900; Guinzburg v. Joseph, 141 id. 472; Seaton v. Garrison, 116 id. 301.) The granting or denial of a motion requiring a reply does not indicate an opinion on the part of the court that the pleading is either good or bad. (Humboldt Exploration Co. v. Fritsch, 150 App. Div. 90.) Obviously, if the matter pleaded, upon inspection, shows that it is insufficient as a defense by way of avoidance, then a reply will not be ordered. (Voisin v. Mitchell, 96 N. Y. Supp. 386.)

The defenses here pleaded, to which the plaintiff is asked to reply, clearly are not frivolous. (Wyllys Co. v. Nixon, 165 App. Div. 373; Sheridan v. Tucker, 145 id. 145; Phillips v. Grossman, 76 Misc. Rep. 497.) Not being frivolous, I think the defendants were entitled to have the plaintiff reply, to the end that they might test by an appropriate motion the validity of such defenses.

Each order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and each motion granted, with ten dollars costs.

Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.

' Orders reversed, with ten dollars costs and disbursements, and motions granted with ten dollars costs.  