
    WILLIAMS v. KILPATRICK.
    
      N. Y. Supreme Court, First District, Special Term, at Chambers;
    
    March, 1888.
    
      Pleading; requiring reply.] In an action against. the survivor of an alleged general partnership, the answer tacitly admitting the contract or liability, denied that defendant was a general partner and alleged that he was a special partner, and that all the requirements of the statutes as to limited partnerships had been complied with,—Held, a proper case to require plaintiff to serve a-reply so as to raise a definite issue as to what violation of the statute was-relied upon.
    Motion to require plaintiff to reply to new matter in answer.
    This action was brought by Ichabod T. Williams, Thomas Williams and Henry K. S. Williams, partners under the firm name of Ichabod T. Williams, against Walter F. Kilpatrick.
    Plaintiff’s complaint alleged that defendant and one William McConnell, who died before the commencement of this action, were general partners doing business in the City of New York, under the firm name of William McConnell & Co. For a first cause of action they alleged that on August 9th, 1887, the firm made its promissory note, in writing, to them for $1,287.37, which had not been paid. For the second cause of action they alleged the nonpayment of a promissory note, made September 10th, 1887, for $469.81, and for a third cause of action they alleged that defendant was indebted to them in the sum of $543.61 upon an account for lumber sold and delivered.
    Defendant in his answer denied being a general partner and alleged that he was a special partner under a limited partnership formed August 7, 1885, which terminated on the death of William McConnell, September 30, 1887, and that each and every requirement of the act and statutes as to “ Limited Partnerships ” had been fully complied with.
    This answer was served by defendant, and plaintiffs thereafter served notice of trial and filed note of issue. The defendant served a cross-notice, but on the next day served a notice withdrawing the notice of trial, and afterward served a notice of motion to require plaintiff to reply to the new matter set up in the answer.
    
      Kelly & Macrae, attorneys for defendant for the motion.
    
      McFarland, Boardman & Platt, attorneys for plaintiffs, opposed.
    The answer to this case does not contain any matter which can properly come within the meaning of N. Y. Code. Civ. Pro. § 516. There must be new matter by way of avoidance. Matter which merely denies the essential allegations of the complaint, or states circumstances which would disprove them, is not new matter (Radde v. Ruckgaber, 3 Duer. 684). The matter alleged in answer is merely the matter which goes to deny the general cause of action set up in the complaint. Anything which tends to show that the cause of action sued upon never really existed, or which merely disproves what plaintiff alleges, may be given in evidence under a general denial (Evans v. Williams, 60 Barb. 346; Greenfield v. Mass. Mut. L. I. Co., 47 N. Y. 430). If the case falls within the section still it is discretionary with the court if it shall order a reply, the plaintiff contends that he should not be made to reply to matters relating to the partnership which are within the knowledge of defendant.
   O’Brien, J.

Defendant is sued as a general partner. This is denied by the answer, and by way of avoidance defendant further alleges that he was a special partner under a limited partnership, formed as provided by statute. There is an implied admission of liability, which is avoided by the setting forth of the necessary statutory steps taken by •defendant to constitute himself a special partner, and thus avoid liability. Where a violation of a statute is the basis of a complaint, in analogous cases, the specific grounds should be pointed out. In this case, therefore, a reply is proper, in order to raise a precise and definite issue. The court being vested with a discretion (Code Civ. Pro. § 516) it should exercise it in this case.

The motion that plaintiff serve a reply is granted. No costs.  