Lehman v. Cores-Martinez Co. , 155 N.Y.S. 218 ( 1915 )

SHEARN, J.

This is an action to recover $644.22 upon a promissory note made by the defendant to the order of plaintiff’s assignor. Defendant alleged, “for a further defense and set-off to the amended complaint,” a cause of action upon a promissory note of $1,000 made by plaintiff’s assignor to the order of the defendant. Plaintiff replied to this counterclaim, but did not allege any affirmative defense thereto. Defendant’s prayer for judgment was merely “that the amended complaint be dismissed.”

[1,2] Proof that the $1,000 note which the defendant sought to set off against any recovery by the plaintiff was an accommodation note was refused, because it was not pleaded in the reply. As no recovery from the plaintiff was demanded in the answer, and as the $1,000 note was pleaded purely as a set-off, no reply was necessary. American Guild v. Damon, 186 N. Y. 360, 364, 78 N. E. 1081. The fact that the plaintiff, in a reply served unnecessarily, failed to allege the accommodation character of the $1,000 note, could not affect the plaintiff’s right to’ introduce evidence which would have been admissible if there had been no reply at all.

Judgment reversed, and new trial ordered, with costs to appellant to> abide the event. All concur.