
    Lillie H. Gilbert, Respondent, v. Cecelia McKenna et al., Appellants.
    (New York Superior Court—General Term,
    December, 1895.)
    Pleading — Reply — Effect of failure to serve.
    Where no order requiring a reply to new matter, in the answer has . been made, a failure to serve one is no ground for striking the cause from the calendar; the only effect of such failure is to render proof of such new matter unnecessary.
    Appeal by Dempsey and Smith, two of the defendants, from order made at Special Term denying motion to strike cause from calendar.-
    
      Blandy, Mooney & Shipman, for appellants.
    
      James Kearney, for respondent.
   McAdam, J.

The action is to foreclose a mortgage on real property. The appellants yyere made parties defendant, on the ground that they had or claimed to have some interest in or lien upon the mortgaged premises subordinate-to that held by plaintiff. They joined issue .by an answer setting up an agreement made with the owner of the fee for a mortgage which was to be prior .to the one sought to be foreclosed.

When the action was called for trial the apjiellants movect to strike the cause from the calendar because of the failure of the plaintiff to serve a reply to the new matter jileaded by him. This ivas on the erroneous theory that the cause was not ' át issue. The motion was denied, and from the order entered on such denial.the present appeal is taken,

The appellants have misconceived the practice. Ho order had been made requiring a reply to the new matter, and it was optional with the- plaintiff to serve one. If without an order a reply was proper, the only effect of a failure to make it was to render unnecessary proof of the facts which should have been met by reply: Code, § 522; Bliss Code Pl. § 396; Randolph v. Mayor, 53 How. Pr. 68; 2 Wait’s Pr. 443,444. The failure" does not prevent a plaintiff from bringing the causé to trial, and the effefet of the omission is properly determinable thereat. Adams v. Roberts, 1 Civ. Proc. Rep. 204; 62 How. Pr. 253.

Irrespective of the question whether the answer contains a counterclaim requiring a reply, the refusal to strike the cause from the calendar was proper, and the order entered upon such refusal must be affirmed,, with costs.

'Freedman, J., concurs.

Order affirmed, with costs.  