
    SUPREME COURT.
    Lorenzo B. Rogers agt. Mutual Reserve Fund Life Association.
    
      _Assessment insurance — Lapsed certificate — Failure to present claim—Code of Civil Procedure, section 616—Cases where the court may require a reply.
    
    In an action against an assessment insurance company, brought by a beneficiary to recover on a certificate of membership, where the defendant’s answer alleged new matter, i. «., the making and non-payment of an assessment:
    
      .Held, that, under section 516 of the Code of Civil Procedure, on motion of defendant's counsel, the court will require the plaintiff to reply to the new matter set up in defendant’s answer.
    
      Brooklyn Special Term,
    
      February, 1885.
    This action was brought to recover $10,000 on a certificate •of membership, issued to Edward B. Rogers by the “ Mutual Reserve Fund Life Association,” of blew York. The plaintiff was beneficiary named in the certificate of membership. The •defendant’s answer alleged that by the terms of the application the constitution and by-laws of the association were made .a part of the certificate, and that by the terms of the certificate and by the constitution and by-laws it was provided that if a member shall neglect to pay any dues or mortuary assessment for more than thirty days from the date of notice to pay, then the membership should at once cease and determine, And the certificate be null and void, and that a notice addressed to the member’s post-office address as appearing on the books of the association, and deposited in the post-office, postage paid, should be deemed a sufficient notice, and that the association will not be bound to recognize any claim unless such claim is made within six months after the date when it shall first arise.
    Defendant moved, under section 516 of the Code, that the plaintiff be directed to reply to the new matter in the answer.
    
      Taylor & Parker, for defendant.
    The new matter in the answer is the making and non-payment of an assessment, and also the failure to present claim within six months.
    The plaintiff should be required to reply, in order that the defendant may be appraised of the issue it has to meet, and-of the way in which plaintiff proposes to avoid the, defense interposed, and in order that the issues may be narrowed and limited (McGinn agt. Torrens, 4 Law Bulletin, 29; Brinkerhoff agt. Brinkerhoff, 8 Abb. N. C., 207; Hubbel agt. Fowler, 1 Abb. [N. S.], 1; Leslie agt. Leslie, 11 Abb. [N. S.], 314; Poillon agt. Lawrence, 43 Supr. Ct., 385; Argall agt. Jacobs, 87 N. Y., 114). The matter rests in discretion, and a reply should be ordered to avoid any surprise and to settle the issues before trial, and the case is a proper one for a reply.
    
      P. Q. Eckerson, for plaintiff, claimed no reply should be ordered since plaintiff, before he can recover, must prove that he has performed all the conditions and requirements of the certificate.
   Bartlett, J.

— Motion granted that plaintiff reply to new matter set up in defendant’s answer.

Note.— The same point was decided before justice Dyckmah, White Plains, October 1883, in Nelson agt. M. R. F. L. A. Before justice Churchill, Syracuse special term, October 1883, Hubbard agt. M. R. F. L. A. — [Ed.  