Louis M. Shaff and Samuel Barnett, Respondents, v. United Surety Company of Baltimore, Md., Appellant

Louis M. Shaff and Samuel Barnett, Respondents, v. United Surety Company of Baltimore, Md., Appellant. First Department, January 20, 1911. Pleading — reply — breach of warranty — conditions precedent to recovery. A plaintiff suing on a policy of burglary insurance should be compelled to reply to a defense of breach of warranty and to a defense of an attempt to defraud - the defendant by exaggerating the claim. But, having alleged the performance of conditions precedent, he will not be required to reply to alleged breaches thereof set up by the defendant, as they amount to no more than denials of his allegations of performance. Appeal by the defendant, the United Surety Company of Baltimore, Md., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew. York on the 4th day of October, 1910,"denying the defendant’s niotion to compel the plaintiffs’1 reply to new matter set up in the answer. Joseph L. Prager, for the appellant. Jacob Manheim, for the respondents. [MAJORITY — Miller, J. :] Miller, J. : This is an action on a policy of burglary insurance. The policy is not made a part of the. complaint, but the plaintiffs plead full' performance of its conditions, provisions and terms. The defenses to which a reply is asked are five in number; three alleged breaches-of what both sides seem to agree are conditions precedent, performance of which the plaintiffs must prove under their plea of performance. The separate defenses,- therefore, are no more than denials. The first defense pleaded is a breach of warranty, and the fifth an attempt to defraud the defendant by exaggerating the claim. "While it is within the discretion of the court to compel a reply to new matter in an answer, constituting a defense by way of avoid- . anee, that discretion will usually be exercised when the new matter, if true, will constitute a defense* (Seaton v. Garrison, 116 App. Div. 301.) The order should be reversed, with ten dollars costs and disbursements, and the motion granted requiring the plaintiffs to reply to the new matter contained in the first and fifth defenses. • Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated ini opinion. Settle order on notice.