Devlin v. Bevins

22 How. Pr. 290

• Court: New York Supreme Court
• Decided: December 15, 1861
• Status: Published

Opinion

Leonard, Justice.

The motion, to strike out the reply must be granted, no counter-claim being set up by the answer.

The word “ defence” in section 154, is to be understood as meaning counter-claim.

Whether that meaning be given to section 154 or not, a reply cannot be permitted where no counter-claim is interposed by the answer, if full effect be given to section 168 of the Code.

The new matter set up in the answer, where it does not constitute a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. (Williams agt. Upton, 8 How. Pr. R., 205 ; Richtmeyer agt. Haskins, 9 How. Pr. R. 481; Myatt agt. Saratoga Mu. Ins. Co., 9 How. Pr. R., 488 ; Quin agt. Chambers, 1 Duer, 673.)

Costs of motion, $10, to the defendant, at the termination of the action.