Chawviteau v. Fay

54 How. Pr. 211

• Court: New York Court of Common Pleas
• Decided: November 15, 1877
• Status: Published

Opinion

Larremore, J.

The answer set up as new matter, by way of avoidance, that plaintiff had sold and assigned the claim in dispute prior to the commencement of the action. To this a reply is interposed denying each and every allegation set up in the answer as new matter by way of avoidance. I think the reply is sufficient within the meaning of sections 514 and 516.of the Code. It may contain either a general or specific denial. The answer alleges an assignment of the claim by plaintiff prior to the suit. This is denied in general terms by the reply, followed by an averment that plaintiff was the owner of the claim at the time the suit was brought. Plaintiff had set forth the fact and should not be required to plead the avoidance of the fact. The motion to strike out the demurrer to the reply as frivolous should be granted.