
    Joseph A. Burr, Respondent, v. The Union Surety and Guaranty Company, Appellant.
    
      Reply — not compelled, to an answer containing statements denying what the plaintiff must prove in order to succeed — a waiver of the requirements of a contract cannot be proved under an allegation of performance.
    
    The complaint in an action upon a bond, given by the defendant to ináure the performance of a contract between the plaintiff and a third party, alleged that the third party had failed to perform the contract and that the defendant was liable upon the bond. The complaint specifically alleged that the plaintiff had complied with all the conditions of the contract made and entered into by the defendant, upon his part to be kept and performed, and then set out the contract of guaranty in full.
    The defendant’s answer contained a general denial, and then set forth an allegation that it was provided in the agreement between the plaintiff and the defendant that the defendant should be notified in writing of any act on the part of the principal which would involve loss for which the defendant would be liable; that no such notice was given, and that the defendant was thereby relieved from obligation upon the bond.
    It further alleged that the bond contained a provision that any action thereon should be brought within six months after the breach of the contract, and that the action was not brought within said six months.
    
      Held, that the allegations óf the answer above set forth were simply specific denials of the allegations of the complaint, supplementing the general denial incorporated in the answer;
    That such allegations did not consist of new matter, and that the defendant was not entitled to require the plaintiff to serve a reply thereto;
    That the plaintiff, having alleged in his complaint performance of the contract made between himself and the defendant, would not be entitled to prove upon the trial a waiver by the defendant of the provisions of the contract in the particulars specifically set forth in the answer.
    Appeal by the defendant, The Union Surety and Guaranty Company, from an order of the Supreme Court, made at the Kings ■County Special Term and entered in the office of the clerk of the ■county of Kings on the 24th day of April, 1903, denying the defendant’s motion for an order compelling the plaintiff to reply to the affirmative defenses set up in the defendant’s amended answer.
    ;Wilson B. Brice, for the appellant.
    
      C. W. Wilson, Jr., and Robert H. Wilson, for the respondent.
   Hooker, J. :

This is an appeal from an order made at Special Term, denying defendant’s motion to compel plaintiff to reply -to the alleged affirmative defenses set up in' his amended answer. The complaint, alleged that the defendant gave its bond to insure the performance-of a contract of one Egenberger with the plaintiff; that Egenberger failed to perform,- and. the- defendant is liable on its bond. The. complaint specifically alleges that the plaintiff has complied with all the conditions of the contract made and entered into by the-defendant herein, upon his part to be kept and performed, and then sets out the contract of guaranty in full. Defendant’s answer, after stating a general denial, contains an allegation that it was provided in said agreement between it and the plaintiff that defendant should be notified in writing of any act on the part of the principal therein named, which would involve loss for which defendant would be responsible; that no such notice was given, and defendant did-thereby become relieved from obligation under the bond.

■ In a separate paragraph the defendant alleges that it was provided in the bond that any suit at law or proceedings in equity must be brought within six months after breach of the contract y that this, action was not brought within said six months, and the plaintiff is bound by the short limitation.

Section 516 of the Code, which permits a reply to be made in certain cases, provides: “ Where an answer contains new matter,, constituting a defence by way of avoidance^ the court may, in it® discretion, on the defendant’s application, direct the plaintiff to. reply to the new matter.” Section 500 of the Code makes provision for-what an answer of the defendant must contain: First, it may contain a general or specific denial of each material allegation in the complaint controverted by the defendant, and, second, a statement of any new matter constituting a defense or counterclaim.

Inasmuch as the provisions of the defendant’s obligation are explicit, it must be held, and there is. no controversy upon this question, that the plaintiff must show performance of the acts he undertook in the contract to perform as a condition precedent to his maintaining the action, and his complaint alleges that he has performed all of the terms and conditions of the- defendant’s obligation. The separate paragraphs of the answer are no more than specific denials of the allegations of the complaint supplementing the general denial also incorporated in the answer. If these portions of the answer are specific denials, they can in no sense be statements of any new matter, and the court is, therefore, under section 516 of the Code, without power to grant the order sought.

The defendant seems to fear that it will be surprised at the trial, and counsel urges in his brief that as to the defense of failure to notify defendant of the breach of the contract, plaintiff may claim to have sent a notice which defendant did not receive, or make claim that the defendant waived notice, and maintains that defendant must prepare itself to meet either or both of these issues. In regard to the defense of lapse of time, defendant urges that plaintiff may deny the same, or may claim that defendant waived the defense, and that the latter must, therefore, prepare for both lines of proof. The learned counsel for the defendant has evidently fallen into error in these statements in his brief, for it has been repeatedly held that an allegation of the performance of a contract will not support proof of defendant’s waiver of performance. (Beecher v. Schuback, 1 App. Div. 359 ; Ryer v. Prudential Insurance Co., 85 id. 7.)

The order appealed from should be affirmed, with costs.

Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  