Van Gieson v. Van Gieson

By the Court,

Welles, P. J.

The complaint was upon a note of $150, which the plaintiff alledged the defendants had not paid. The answer states that on or about the 10th day of August, 1848, the defendants paid the note to the plaintiff. The plaintiff put in no reply to the answer. On the trial before the referee, the defendants’ counsel contended that the fact of payment must be taken as admitted, by the plaintiff’s omission. to reply. The referee held otherwise, and heard the evidence on the question of payment, and reported in favor of the plaintiff for the amount of the note and interest.

The 168th section of the code of 1849, and the 144th section of the code of 1848, provide that every material allegation of new matter, not specifically traversed by the reply, shall, for the purposes of the action, be taken as true. By these sections, the common law rule is preserved. (1 Ch. PL 538.) But where there is a complete issue between the parties, viz. a direct affirmative and negative, the plea should conclude to the country, and this rule equally prevails, whether the affirmative be first in the pleadings and the negative subsequent, or vice versa, (1 Ch. PL 536. Gould’s Plead, ch. 3 196,197.)

The answer, in this case, introduced no new matter. It affirmed what the complaint had denied in relation to the note, viz. the payment. A reply would only have been a reiteration of the complaint, on that point. I think there was a good issue in substance between the parties, and that the referee decided it correctly upon the evidence; and I am unable to perceive any legal objection to his ruling, on the admission or exclusion of evidence. The judgment at the special term should be affirmed.

[Monroe General Term, September 2, 1850.

Ordered accordingly.^(a)

Welles, Selden and Johnson, Justices.]

(a) This decision was affirmed in the court of appeals at the March term of that court, A. D. 1852, on appeal.