Williams v. Kilpatrick

21 Abb. N. Cas. 61

Opinion

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.