#### John G. Avery, Pl’ff, *v.*The New York Central and Hudson River R. R. Co., Def't.

*(Superior Court of Buffalo,*

*General Term,*

*Filed July 12, 1889.)*

1. Pleading—Answer—What to contain—Code Civ. Pro., § 500.

Under section 500, Code Civil Procedure, requiring “a denial of each material allegation of -the complaint controverted by the defendant,” the allegations thus controverted should appear up'on Lie face of the answer.

2. Same—Plea in bar—When reply not needed—Code Civ. Pro., §8

501, 514, '532.

Where the matter in an answer is not plead as a counter-claim, but by way of defense and ai oidance, it really constitutes a plea in bar, and no reply is needed even though the matter alleged technically constitutes a counter-claim, and the plaintiff upon the trial, can give evidence by way of avoidance of the new matter alleged in the answer without the aid of further pleading.

3. Same—Reply—When stricken out—Code Civ. Pro., § 516.

Where no reply is needed as a matter of law, and the plaintiff volun" tarily, and without first obtaining an order for the purpose, serves a reply, it becomes an irrelevant pleading, and may be stricken out on motion.

Demurrer to reply as being insufficient in law upon its face.

*White & Simons,*for pl’ff; *James F. Gluck,*for def’t.

Hatch, J.

The complaint states two causes of action in different counts. The first asks to recover damages for the failure upon the part of the defendant to maintain an. opening, as by law it is required to do, in a fence separating defendant’s premises from premises occupied by plaintiff. The cause of action is alleged to have arisen upon the 1st day of August, 1881, and been continuous to the commencement of the action August 18, 1888. The second count seeks to recover damages for the creation and maintenance of a nuisance in and about the operation of defendant’s cars and engines adjoining the premises occupied by plaintiff. This cause of action is alleged to have arisen about May 1, 1884, and been continuous to May .1, 1888.

The defendant for answer to the complaint seems first to admit the incorporation of defendant. By a second count it seems also to admit certain similar allegations contained in the second count. For a third answer it seems to deny certain allegations, stated as follows: “Beginning with the words,” “and the said plaintiff,” “in folio 5,” “and ending with the words,” “ said hotel and restaurant,” “ in folio 9,” and as to the further allegations, beginning with the words, “And the said plaintiff further alleges” “infolio 19,” and ending with the words, “hotel and restaurant,” “in folio 20.”

This pleading is not such a pleading as the Code contemplates. When served it imposed upon counsel for plaintiff the necessity of comparing the two pleadings to enable him to determine what is put in issue. When the original pleadings are offered for inspection it is possible to deter*919mine what is intended to be admitted and what denied, but when the papers are printed the original folios are omitted and the court to whom they are presented is left to guess and conjecture to what the references refer. If the question presented by this demurrer involved the allegations in question, we should decline to examine them, as presenting nothing intelligible. The Code, section 500, requires: “A denial of each material allegation of the complaint* controverted by the defendant.” The allegations thus controverted should appear upon the face of the answer. *Baylis*v. *Stimson,*110 N. Y., 621; 16 N. Y. State Rep., 175.

Defendant’s fourth answer denies all the other allegations of the complaint. The fifth alleges that the second cause of action did not accrue within twenty years next before the commencement of the action. The sixth that neither cause of action alleged accrued within six years next before the commencement of the action. The seventh alleges the recovery of a judgment which defined the rights and duties of the parties with respect to the fence and the opening to be maintained therein. The eighth and ninth pleads the recovery of judgments for the same cause of action alleged in the first count of the complaint, and specifies the periods of time for which damages were recovered in said judgments respectively, viz.: The first, for damages accruing from September 10, 1881, to January 28, 1884; the second, from January 28, 1884, to March 30, 1886.

For a tenth answer, it is alleged that a like action, as set forth in the counts last above, is now pending undetermined to recover damages accruing from August 1, 1881, to November 2, 1887. For an eleventh answer, it is alleged that the judgments referred to in the seventh, eighth and ninth counts are conclusive as to the matters actually determined in which judgments were rendered, and as to all matters alleged in the second cause of action during the period of time from May 1, 1874, to March 30, 1886.

The record discloses that, in January, 1889, a notice of motion was served by defendant to obtain an order requiring plaintiff to reply to that portion of the answer embraced within the fifth to the eleventh counts, inclusive. It does not appear that any order was ever obtained, but it is conceded by counsel that plaintiff thereafter voluntarily served a reply, to which defendant now demurs. In disposing of this demurrer we have deemed it best, in view of the manner in which it has arisen, to determine whether a reply should have been ordered. It is seen, by the allegation of the complaint, that the time within which the first cause of action alleged arose is specified in terms, as well as the period for which damages are sought to be recovered, and the same is true of the second cause of action. It thus appears that, as to that portion of the answer which pleads the statute of limitations, all of the facts upon which *920plaintiff relies to avoid the force of the statute appear by affirmative allegations. It does appeal that more than six years have elapsed since a portion of the damages sought to be recovered for arose; that may furnish good ground at the trial upon which to base an objection limiting the recovery; but it does not furnish ground for ordering a reply, when the facts alleged in the complaint show an avoidance of the statute. So far as the answer alleges the recovery of judgments for the same cause of action, and the pendency of an action for the same cause, it is to be noticed that the specific periods for which damages were recovered, and are sought to be, is stated in the answer; and from them we can see at once that, full force being given to them as a plea in bar, they do not entirely meet the allegations of the complaint, for it seeks to recover damages to August 18, 1888, while the pleas in bar do not operate as such beyond the 2d day of November, 1887, thus leaving a period of over nine months, when no defense is interposed beyond a denial. The judgment recovered and the actions pending are as clearly within the knowledge of the defendant as the plaintiff, as is also the extent of their operation as a bar. This is not like the case of *Hubbell*v. *Fowler,*(1 Abb. N. S., 1).

That was an action upon a promissory note, and the moving papers disclosed that more than six years had elapsed since the maturity of the note, before the summons was served. The court was able to specify twelve different pleas by which the statute might be avoided, and it very properly held that defendant was entitled to know what the specific ground was upon which plaintiff relied to defeat the operation of the statute. No reply is needed to the eleventh count, as it pleads a claimed conclusion of law, as the effect of the previous allegations. It is quite clear that no reply was required to this answer, as its allegations do not constitute a counter-claim. Code Civ. Pro., §§ 501-514; *Cragin*v. *Lovell,*88 N. Y., 258-263.

The matter is not plead as a counter-claim, but by way of defense and avoidance, it really constitutes a plea in bar. No reply is therefore needed, even though the matter alleged technically constituted a counter-claim. *Acer*v. *Hotchkiss,*97 N. Y., 395-408; *Equitable Life Assurance Society*v. *Cuyler,*75 id., 511.

The plaintiff, upon the trial, can give evidence by way of avoidance of the new matter alleged in the answer without the aid of further pleading, for by the express provision of the Code such new matter is deemed controverted either by traverse or avoidance, as the case requires. Code, § 522; *Arthur*v. *Homestead Fire Ins. Co.,*78 N. Y., 462; *Keeler*v. *Keeler,*102 id., 36; 1 N. Y. State Rep., 673.

This being a case where no reply is required as a matter of law, such pleading is only authorized by an order of the court. Code Civ. Pro., § 516.

No such order was obtained, and both counsel now claim it to have been voluntarily served. Not being authorized or *921sanctioned by an order of the court, it becomes an irrelevant pleading, ana may be stricken out on motion. *Sterling*v. *Metropolitan Life Ins. Co.,*6 N. Y. State Rep., 96.

But the court will not entertain it for the purpose of determining its sufficiency to resist a demurrer. The demurrer is therefore set aside as unauthorized, without costs to either party.

All concur.