Dillon v. The Sixth Avenue Railroad

14 Jones & S. 21

Opinions

By the Court.—Curtis, Ch. J.

Section 516 of the Code of Civil Procedure provides that, “when an answer contains any new matter, constituting a defense by way of avoidance, the. court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.”

Section 517 provides that “a reply may contain two or more distinct avoidances of the same defense or counter-claim.” The reply containing avoidances referred to in this section, is the same reply that may be directed by the court in its discretion upon the defendant’s application, as provided for in section 516. These two sections should be construed together. The reply in the present case was served without any application to the court for direction or leave to make it, so that it is not founded on any exercise of the discretion of the court, or on the application of the defendant, as required by these provisions of the Code.

The order appealed from should be reversed, but as the practice is new, it should be without costs, and the motion should have been granted also without costs.