
    Maria W. Croome Resp’t, v. Daniel H. Craig et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Pleading—Reply—Demubber—When sustained.
    In an action brought for an accounting and distribution of the proceeds of property sold under a contract executed by defendants, the complaint stated the contract to have been made upon the settlement of disputes between the parties. The answer alleged that they had discovered certain errors in the accounts which diminished their liability under the agreement, and that they should be allowed to prove and correct them. By way of reply plaintiff alleged that defendants were guilty of loches in not attempting sooner to correct the alleged errors. Held, that as it is not alleged in the reply that any other delay has arisen than that appearing on the face of the answer, the demurrer taken to it by defendants should have been sustained.
    Appeal from an interlocutory judgment overruling a demurrer to the plaintiff’s reply.
    
      E. Haines, for app’lts; Alan D. Kenyon, for resp’t.
   Daniels, J.

The action was brought to obtain an accounting, and the distribution of the proceeds of property sold under a contract executed by the defendants. The complaint stated the contract to have been made upon the settlement of disputes concerning accounts between the parties. By their answer, the defendants alleged that errors intervened in the accounts which they had discovered, -diminishing their liability under the agreement. As a relief they demanded judgment that they should be allowed to prove these errors and mistakes, and that the amounts otherwise mentioned, should accordingly be corrected. By way of reply to this part of the defendant’s answer, it was alleged that the defendants had delayed so long before attempting to correct the alleged errors, mistakes and untrue ■charges that they had been guilty of such gross and culpable negligence carelessness and loches as not to be entitled to consideration in a court of equity, or to the reformation asked for in the answer. And it was to this part of the reply that the demurrer was interposed, upon the ground that it failed to state facts sufficient to constitute a reply, or for the avoidance of the counter-claim.

No fact whatever was inserted in this part of the reply that did not already appear from the complaint and the answer. It was alleged as a fact in this portion of the answer, that the errors and mistakes were discovered by defendants on or about the first of March, 1887, and that they then made them known to the plaintiff and required a correction of the same, but that the plaintiff refused to comply with that request.

The counter-claim relied on in the answer was for the correction of errors, or mistakes, alleged to have been included in the accounting mentioned in the agreement, and if such mistakes did, in fact, exist, their allowance would result in reducing the liability asserted by the plaintiff under the agreement. The counter-claim set forth was not so much for the correction of the agreement itself, as it was for the correction of the accounting, and the defense, for that reason, is not strictly within the authorities referred to by the plaintiff. If the defendants have forfeited their right to relief, by delay or negligence, that fact will appear by the proof which must be given to support their answer. Whatever defect may, in this respect, exist in their case has in no way been extended, or changed, by the reply, for it has not alleged that any other delay has arisen than that appearing on the face of the answer itself, and an inference from those facts, which is all that this part of the reply includes, will not form the subject-matter, of a reply.- If the reply had stated that the errors and mistakes mentioned in the answer had come to the knowledge of the defendants at some assignable period of time different from that mentioned in the answer, then it might be substantially capable of being supported, but it contains no such averment;- but all that it has stated upon this subject is apparently by way of argument from the facts previously disclosed by the pleadings, and a reply has. not been rendered necessary for the presentation of that argument.

As this division of the reply contained a statement of no fact by way of answer to the defendants’ counter-claim, the demurrer taken to it by defendants should have been sustained.

The interlocutory judgment, therefore, should be reversed, and a judgment entered sustaining the demurrer; but inasmuch as the defendants’ pleading is not entirely free from defect, the costs of the appeal should be allowed to abide the event of the action.

Van Brunt, Ch. J., and Brady, J., concur.  