
    WHITTING v. NEW YORK & LONG ISLAND TRACTION CO.
    (Nassau County Court.
    June, 1915.)
    1. Pleading @=166—Reply—Necessity.
    Under Code Civ. Proe. § 522, declaring that an allegation of new matter in the answer, to which a reply is not required, is to be deemed controverted by traverse or avoidance, as the case requires, plaintiff, in a personal injury action, need not serve a reply to enable her on trial to attack a release set up by defendant; a reply in such cases not being required.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 321%-328; Dec. Dig. @=166.]
    2. Pleading @=166—Reply—Necessity—Discretion oe Court.;
    Code Civ. Proc. § 516, declares that, where an answer contains new matter constituting a defense by way of avoidance, the court may direct the plaintiff to reply. ’ In a personal injury action defendant set up a release. Held that, while a reply was not absolutely necessary, yet, as the release could be attacked on many grounds, a reply should be required and defendant not compelled to prepare to meet every possible ground of attack.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 3211^-328; Dec. Dig. @=166.]
    <e=s>For other cases see same topic & ICBY-NUMBBR in all Key-Numbered Digests & Indexes
    Action by Hilda Writting against the New York & Long Island Traction Company. On motion to compel plaintiff to serve a reply.
    Motion granted.
    James L. Quackenbush, of New York City (Martin F. Lynch, of New York City, of counsel), for the motion.
    Clock & Seaman, of Freeport (James M. Seaman, of Freeport, of counsel), opposed.
   NIEMANN, J.

This action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff on the 4th day of October, 1914, through the negligence of the defendant while she was a passenger upon "one of its cars. The answer is a general denial, and for a further and separate defense alleges that the plaintiff, on the 5th day of October, 1914, for a valuable consideration, executed a general release to the defendant, whereby she released and discharged the defendant from the alleged cause of action set forth in the complaint, and from any and all claims which she may have had against said defendant down to the day of the execution of said release. The defendant now moves for an order requiring the plaintiff to reply to this separate affirmative defense, so that it might know in advance of the trial what issue it would have to meet- in regard to the said affirmative defense.

The release is pleaded as new matter constituting a defense by way of avoidance, and is to be deemed controverted by the plaintiff by traverse or avoidance, as the case may require. Code Civ. Proc. § 522; O’Meara v. Brooklyn City R. R. Co., 16 App. Div. 204, 205, 44 N. Y. Supp. 721. She need not serve a reply in order to enable her to attack the release upon the trial. Dambman v. Schulting, 4 Hun, 50. Nor can she be compelled, as a matter of strict legal procedure, to reply to this new defense.

But, where an answer contains new matter constituting a defense by way of avoidance, the court may,- in its discretion, require a reply to the new matter. Code Civ. Proc. § 516; Mercantile Nat. Bank of the City of New York v. Corn Exchange Bank, 73 Hun, 78, 25 N. Y. Supp. 1068; Seaton v. Garrison, 116 App. Div. 301, 101 N. Y. Supp. 526; Shaff v. United Surety Co., 142 App. Div. 465, 127 N. Y. Supp. 8; Schweitzer v. H. A. P. A. Gesellschaft, 149 App. Div. 900, 134 N. Y. Supp. 812; Steinway v. Steinway, 68 Hun, 430, 22 N. Y. Supp. 945 ; Cavanagh v. Oceanic Steamship Co., 56 Hun, 641, 9 N. Y. Supp. 198; Watson v. Phyfe, 20 Wkly. Dig. 372. And see notes of cases as to when reply will be ordered, in 4 N. Y. Ann. Cas. 219 and 7 N. Y. Ann. Cas. 286.

Mr. Justice Scott, in the case of Seaton v. Garrison, supra, says that:

“This discretion is usually exercised where the new matter is of such a character as to indicate that, if true, it will constitute a defense to the action; the purpose being to simplify the issues and prevent surprise at the trial.”

Mr. Justice Miller, in the case of Shaff v. United Surety Co., supra, says:

“While it is within the discretion of the court to compel a reply to new matter in an answer, constituting a defense by way of avoidance, that discretion will usually be exercised when the new matter, if true, will constitute a defense.”

Mr. Justice Burr, in the case of Schweitzer v. H. A. P. A. Gesellschaft, supra, says (149 App. Div. 901, 134 N. Y. Supp. 813):

“No absolute rule can be formulated applicable to all cases in accordance with which such a motion should be granted or denied. * * * But as a general rule, when the new matter set forth in a plea in bar is of such a character that, if true, it will constitute a complete defense to the action, unless in some manner it is avoided, it will simplify the issue and prevent surprise at the trial, if a reply is ordered showing the grounds of avoidance, if such exist.”

Mr. Justice Parker, in the case of Mercantile Nat. Bank of the City of New York v. Corn Exchange Bank, supra, says:

“The discretion thus committed is a legal one, which should be so exercised as to prevent surprise and promote the interests of justice.”

As the pleadings now stand, the plaintiff would have the right upon the trial to attack the release upon the ground of fraud, mistake of fact, illegality of execution, etc., and, as pointed out by Judge Rumsey, in the case of O’Meara v. Brooklyn City R. R. Co., supra (16 App. Div. 205, 44 N. Y. Supp. 722)—

•“ * * * rely upon every possible answer which she might have to the release, precisely as though it had been pleaded.”

The defendant would have to go to trial without knowing what particular ground the plaintiff will rely upon to avoid the release.

It seems to me that the burden of making preparation to meet ev•ery possible ground of attack upon the release should not be cast upon the defendant, but that the issue based upon this new defense should be sharply drawn, so that the defendant shall not be surprised upon the trial. The defendant should be given an opportunity before trial to know what the plaintiff intends to urge as the ground of the invalidity of the release. Steinway v. Steinway, supra, 68 Hun, at page 432, 22 N. Y. Supp. 945. Justice will be promoted by having the issue .as to the validity and sufficiency of the release clearly defined.

In the recent case of Warner v. Star Co., 162 App. Div. 458, 147 N. Y. Supp. 803, the plaintiff sued for damages for personal injuries resulting from negligence. The defendant, in addition to a general denial, set up as an affirmative defense the execution of a general release by the plaintiff. An order was made requiring the plaintiff to reply to said affirmative defense, with which the plaintiff complied, setting up several grounds upon which it was claimed that the release was invalid. After joinder of issue, the defendant moved for a separate and prior trial, under section 973 of the Code of Civil Procedure, of the issue as to the validity of the release. This motion was denied, and upon appeal the Appellate Division in the Second Department reversed the order and granted the motion for a separate and prior trial. In the course of the opinion the court treated the question of the validity of the release as an entirely separate and distinct issue, and held that the defendant was entitled to have the questions of law and fact as to the release first disposed of, so that the case might be taken out of the atmosphere occasioned by the evidence of negligence and contributory negligence which might produce an unconscious influence upon the jury. Since the question of the validity and sufficiency of the release is in itself a distinct question of law and fact to be decided separately from the question of negligence, it follows that the pleadings should be made complete by setting forth in a reply the particular ground or grounds upon which the release is sought to be avoided, so that the plaintiff may be limited to the grounds set up and the defendant be fully prepared to meet them upon the trial. Mr. Justice Burr, in the Warner Case, referring to said section 973 providing for .a separate and prior trial, says (162 App. Div. 461, 147 N. Y. Supp. 805):

“The Code section above referred to has useful application to an issue which, if determined in one way, will end the litigation and render a trial upon the merits unnecessary"—citing Smith v. Western Pacific Railway Co., 144 App. Div. 180, 128 N. Y. Supp. 966; Pemberton v. McAdoo, 149 App. Div. 20, 133 N. Y. Supp. 627.

And so it may be said here that, if a reply is ordered, the plaintiff may not deny the execution and validity of the release, or may fail to allege facts sufficient to avoid the same, so that the defendant would be entitled to judgment upon the pleadings. Lincoln Trust Co. v. McVickar et al., 68 Misc. Rep. 132, 123 N. Y. Supp. 723.

I am of the opinion that the defendant’s practice in moving for-a reply is correct, and that the court, in the exercise of a sound discretion, should grant the motion.

Motion granted directing plaintiff to reply to the further and separate defense set forth in paragraph 3 of the defendant’s answer. Settle order on notice..  