
    EAGLE WAIST CO. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.
    (Supreme Court, Appellate Term.
    February 15, 1912.)
    Insubance (§ 641)—Action on Policy—Necessity oe Reply.
    Plaintiff sued on a burglary policy, alleging performance of all covenants and conditions, to wliich defendant answered with a general denial, and as a first defense that plaintiff failed to keep books and accounts, as required by the policy, and as second defense that the policy was avoided by plaintiff’s fraud in exaggerating his claim by false statements. Held, that the first defense was equivalent merely to a general denial, to which plaintiff was not bound to reply, but that the second defense pleaded new matter, to which a reply was required.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1554, 1626-1629; Dec. Dig. § 641.*]
    Appeal from City Court of New York, Special Term.
    Action by the Eagle Waist Company against the Ocean Accident & Guarantee Corporation, Limited. From an order of the New York City Court, denying defendant’s motion to compel plaintiff to reply to the first and! second defenses of defendant’s answer, it appeals.
    Modified and affirmed.
    Argued February term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
    Joseph L. Prager, for appellant.
    Victor Deutsch, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes
    
   SEABURY, J.

Plaintiff sues to recover upon a policy of burglary insurance. The answer is in effect a general denial, and as a first defense alleges that the plaintiff failed to keep books and accounts as required by the terms and conditions of the policy, and as a second defense that the policy was avoided by the fraud of the plaintiff in exaggerating his claim by false statements. The defendant moved in the court below to compel the plaintiff to reply to the first and second defenses. This motion was denied, and from the order entered thereon the defendant appeals to this court.

The complaint alleged that the plaintiff duly performed all the covenants and conditions on his part to be performed. The first alleged defense contained in the answer is equivalent merely to a denial of the allegations which, in effect, are contained in the complaint, and we think that the discretion of the court below was properly exercised in refusing to compel a reply to this defense. Shaff v. United Surety Co., 142 App. Div. 465, 127 N. Y. Supp. 8. The second alleged defense pleaded contained new matter, which, if true, would constitute a defense to the action. The plaintiff should, therefore, have been directed to reply to this defense. Shaff v. United Surety Co., supra.

Order modified, by requiring the plaintiff to reply to the second alleged defense, .and, as modified, affirmed, with $10 costs and disbursements to the appellant. All concur.  