Gilbert v. Cram

12 How. Pr. 455

• Court: New York Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Morris, Justice.

The complaint is in assumpsit for goods sold and delivered on the 12th of October, 1854, and avers, u That thereupon the defendant is now indebted to the plaintiffs in, and the plaintiffs demand judgment against the defendant for $523.05, with interest thereon from October 12th, 1854.”

The answer of the defendant admits the purchase of the goods, &c., and avers they were purchased upon a credit of six months, and that the credit had not expired.

This allegation in the answer is not “ A statement of new matter constituting a defence,” but is merely a special denial of the plaintiffs’ allegation, that “ the defendant is now indebted to the plaintiffs”—a denial of the contract set up ly the plaintiffs. New matter is where the contract is admitted, and the matter set up avoids the contract—not where the matter set up denies the contract.

The plaintiffs were not entitled to reply to the defendant’s answer. The reply is, therefore, irregular, and must be stricken out, with costs.

The facts pleaded by the plaintiffs in their reply, should have been stated in their complaint, and then the defendant would have had an opportunity to deny them.

If the plaintiffs desire, they may amend their complaint upon paying defendant $10 costs of this motion.