Ormsbee v. Brown , 1867 N.Y. App. Div. LEXIS 160 ( 1867 )

Clerks, J.

It is not proper, now, to consider whether the new matter set up in the answer, constitutes a counterclaim. The court has already decided this question by allowing the plaintiff to put in a reply to it. The only question left for me to consider is, whether the supplemental reply contains allegations which, if proved, would controvert the facts set up in the counter-claim. This counter-claim sets up a demand against the plaintiff which, if true, would entitle the defendant to a judgment in this action ; the supplemental reply sets up payment of this demand since the service of the answer and the first reply. This occurrence having arisen since the previous reply, and as it constitutes a complete answer to the counter-claim, it is properly the subject of a supplemental reply.

Demurrer overruled with costs, and judgment for the plaintiff, thereon.

Clerke, Justice.]