
    Ormsbee vs. Brown.
    Where a counter-claim set up a demand against the plaintiff which, if true, would have entitled the defendant to a judgment, and the plaintiff put in a supplemental reply setting up payment of such demand since the service of the answer and the first reply; Held, that this occurrence having arisen since the previous reply, and constituting a complete answer to the counterclaim, it was properly the subject of a supplemental reply.
    DEMURRER to supplemental reply. This is an action of claim and delivery of personal property, alleged to be of the value of $300. The prayer for relief claims a judgment for delivery of the property or its value in money and damages for its detention. The answer first denies property in the plaintiff; and for a second and separate defense sets up that the defendant has done work, labor and services on and about the property in question, and advanced money to purchase new material to repair it, amounting in all to-■ which it alleges was then due by the plaintiff to the defendant, and still remains due and unpaid, and that the property was held and detained under the lien thus acquired. The. plaintiff replied to this second defense, treating it as an allegation of new matter, constituting a counter-claim, and set up another action pending in another court for the sum and services mentioned in the answer. Upon this reply issue was joined and the cause was duly noticed. .Afterward the defendant recovered a judgment against the plaintiff in the action referred to, and the plaintiff fully paid and satisfied the same. Whereupon the plaintiff gave notice of motion asking the court for leave to serve a supplemental reply in which the recovery of judgment and satisfaction thereof should be set up under the authority of a recent amendment of the Code. The court granted the motion. The supplemental reply was then served, to which the defendant demurred.
    [New York Special Term,
    October 7, 1867.
    
      Robert Sewell, for the plaintiff.
    
      --} for the defendant.
   Clerks, J.

It is not proper, now, to consider whether the new matter set up in the answer, constitutes a counterclaim. The court has already decided this question by allowing the plaintiff to put in a reply to it. The only question left for me to consider is, whether the supplemental reply contains allegations which, if proved, would controvert the facts set up in the counter-claim. This counter-claim sets up a demand against the plaintiff which, if true, would entitle the defendant to a judgment in this action ; the supplemental reply sets up payment of this demand since the service of the answer and the first reply. This occurrence having arisen since the previous reply, and as it constitutes a complete answer to the counter-claim, it is properly the subject of a supplemental reply.

Demurrer overruled with costs, and judgment for the plaintiff, thereon.

Clerke, Justice.]  