(dissenting in part). I am unable to concur in so much of the opinion of the court as strikes out the three “ affirmative replies,” because evidence of the facts alleged therein would be admissible under the denials contained in the reply.
I find no reason to distinguish between the rule which now prevails, supplanting the ancient common-law rule to the contrary (Perry, Common Law Pleading, p. 408, and cases cited), allowing the defendant, in the answer, to plead affirmatively matter that might be established under a denial (Staten Island M. R. R. Co. v. Hinchliffe, 170 N. Y. 473) and the rule to be applied in the case of a reply to new matter contained in the answer. The terse statement of Judge Crane in Morgan Munitions Co. v. Studebaker Corp. (226 N. Y. 94), that “ Matter which would be sufficient under a general denial loses none of its efficacy by being pleaded as a defense ” has become the accepted rule of pleading in this State. (Home Insurance Co. v. Gillespie Loading Co., 222 App. Div. 67; Kelly v. National Bank of Whitehall, 190 id. 760.) The pertinent provisions of the Civil Practice Act relating to the contents of the answer and the reply are almost identical and do not countenance the view that a different rule of pleading should apply where the defendant answers the complaint than applies where the plaintiff replies to new matter in the answer whether the new matter be a counterclaim or an affirmative defense. The provisions (Civ. Prac. Act, § 261) applicable to the answer are:
“ Contents of answer. The answer of the defendant must contain:
“ 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.
“ 2. A statement of any new matter constituting a defense or counterclaim.”
The provisions (Civ. Prac. Act, § 272) applicable to a reply are:
“ Contents of reply. Where the answer contains a counterclaim, the plaintiff may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth new matter not inconsistent with the complaint constituting a defense to the counterclaim.”
By section 275 of the Civil Practice Act we are admonished that “ pleadings must be liberally construed with a view to substantial justice between the parties.” ' Notwithstanding that admonition, it is now proposed that, in the case of a reply, we shall revert to the doctrine, thought to have been discarded from our system of plead*146ing, which would require a party to determine at his peril the question, often so difficult and doubtful (Conkling v. Weatherwax, 181 N. Y. 258; Murray v. Narwood, 192 id. 172; Milbank v. Jones, 141 id. 340; Whipple v. Brown Brothers Co., 225 id. 237; Irving v. Irving, 90 Hun, 422; affd., 149 N. Y. 573), whether his defense may be established under a denial or whether, to be admissible at the trial, it must be asserted affirmatively. The reversion to this archaic principle is not supported by any consideration of substantial justice. Manifestly, it is not warranted by any thought of avoiding surprise at the trial, for it cannot be contended that the pleader, who could offer the proof under a denial, will surprise his adversary by setting forth in detail the nature of his contention in an affirmative defense. Nor is it justified upon the theory that the pleader gains some undue advantage by pretending to assume the burden of proof, for whenever that question has arisen the court has found no difficulty, and should find none here, in disregarding the state of the pleadings in determining where the burden • lies. (Knickerbocker Trust Co. v. Miller, 149 App. Div. 685; Ebin v. Equitable Life Assurance Society, 177 id. 458; Barone v. O’Leary, 44 id. 418; Siede v. Newkirk, 148 id. 864; Curtis v. Searles, 206 id. 287; Moffat v. Phœnix Brewery Corporation, 247 id. 552.)
Tested by these principles all the items of examination allowed are relevant to the issues raised by the pleadings, including the reply, except items 7 to 24, and the order appealed from should, as so modified, be affirmed.
The order denying defendants’ motion to modify plaintiff’s demand for a bill of particulars should be modified by striking out items 6, 14 and 17, and as so modified affirmed.
To the extent above indicated I dissent from the decision of the court.
Dore, J., concurs.
Order denying defendants’ motion to strike out the first, second and third affirmative defenses contained in plaintiff’s reply reversed and the motion granted. Untermyer and Dobe, JJ., dissent.
Order granting plaintiff’s motion for an examination of defendants before trial, so far as appealed from, unanimously modified by eliminating items 7 to 24 of the notice of examination, and as so modified affirmed. The date for the examination to proceed to be fixed in the order. Settle order on notice.
Order denying defendants’ motion to modify plaintiff’s demand for a bill of particulars, so far as appealed from, modified and the motion granted to the extent indicated in the opinion of Cohn, J. Untermyer arid Dore, JJ., dissent in part. Bill of particulars to *147be served within ten days after service of a copy of the order to be entered hereon. Settle order on notice.
Appellants to have twenty dollars costs and disbursements on the appeal from the order denying their motion to strike out the first, second and third affirmative defenses in plaintiff’s reply, and printing disbursements on each of the other appeals.