Rosner v. Globe Valve Corp.

The plaintiff sues to recover commissions claimed to have been earned as a sales representative for the defendant. The answer sets forth six counterclaims seeking-damages for slander: The plaintiff’s amended reply pleads the Statute of Limitations as a separate defense to each of the first two counterclaims. It also alleges additional defenses of “ justification ” and “ truth ” as to all six counterclaims.

*463The plaintiff moved to compel a reply to the affirmative defenses pleaded in his amended reply as aforesaid. The circumstances would warrant a discretionary order under section 274 of the Civil Practice Act requiring a reply to the defenses based on limitations, if such defenses had been pleaded in an answer. At the same time a proper exercise of discretion would call for a contrary ruling with respect to the alleged defenses of £ £ justification ” and ££ truth ”.

The Special Term denied the plaintiff’s motion in its entirety on the ground that there is no provision under our practice for a responsive pleading to a defense by way of avoidance contained in a reply. We think, however, that an ££ answer ” within the meaning of section 274 of the Civil Practice Act should be construed to include a reply alleging a defense by way of avoidance to a cause of action asserted in a counterclaim. We find that the statute thus construed would authorize an order requiring the defendant to reply to the defenses of limitations as set forth in paragraphs 14 and 15 of the plaintiff’s amended reply.

The order appealed from should be modified to the extent of directing the service of a further pleading as indicated and, as so modified, affirmed, with $20 costs and disbursements to the appellant.

Peck, P. J., Dore, Cohn, Callahan and Van Voorhis, JJ., concur.

Order, so far as appealed from, unanimously modified to the extent of directing the service of a further pleading as indicated in the opinion herein and, as so modified, affirmed, with $20 costs and disbursements to the appellant. Settle order on notice.