By section 153 of the Code, a reply to new matter in the answer setting up a counter-claim is only necessary when it sets up a counter-claim.
The answer, in this ease, does not set up a counter-claim, hence, no reply was necessary. The answer stood denied.
The defendant, on the cross-examination of the plaintiff, proved by him, the plaintiff, the assignment of the bond and mortgage to Parkhurst, and the court refused to allow the plaintiff to prove that Parkhurst reassigned it to him, on the ground, as I infer from the points of counsel, that there was no allegation in the plaintiff’s pleadings admitting such proof.
The defendant was right in setting up, in her answer, that Parkhurst was the owner of the bond and mortgage, and, consequently, that plaintiff could not maintain the action. If it was true, as the plaintiff offered to prove, that Parkhurst reassigned them to him, the defense was avoided, and the plaintiff was entitled to maintain the action.
The plaintiff could not set up the reassignment by any rejoinder to the reply, and, hence, the averment must be made in the complaint, if it could not be proved on the trial, without any allegation in a pleading in respect to it. To amend the complaint, to admit of such proof, would have been a violation of principles of pleadings prescribed by the Code, and would be without precedent in any system of pleading. '
*590No reply being necessary to the answer of defendant, it was to be deemed denied for all purposes of the action.
Under such a denial, what evidence may the plaintiff give in reply to the new matter of the answer ? Is he confined to proving the negative of the matters alleged in the answer; or may he prove any matter which, in law or in fact, avoids the new matter in the answer?
The position of the plaintiff’ under section 153 of the Code, is precisely the same, as it was after replication filed in chancery. He was entitled to give any evidence that avoided the new matter in the answer; and he is now entitled to give the same evidence without replication, unless the answer sets up a counter-claim. The new matter in the answer may render necessary an amendment of the bill, by making new parties, or getting rid of those whom he has already made parties; but it was never heard of, I think, that a plaintiff was bound to amend his bill when the defendant alleged, in his answer, a transfer of the subject-matter of the action, by alleging, first, an assignment of the cause of action, and then a reassignment back to him, in order that he might prove the reassignment.
The defendant having proved the assignment to Parkhurst, it was the right of the plaintiff to prove the reassignment; and, because he was deprived of this right, the judgment must be set aside, and a new trial granted, costs to abide event.
Present — Mullin, P. J., Smith and Gilbert, JJ.Judgment reversed and new trial granted, costs to abide event