— This is an appeal from the judgment of an alderman and is an action in assumpsit.
The defendant filed his affidavit of defense answering the allegations in the plaintiff’s statement of claim, each paragraph being separately numbered and setting forth the matters of defense to be proved by the defendant. In addition thereto, the defendant filed as part of his affidavit of defense new matter and marked paragraphs one to five, both inclusive. Thereupon the plaintiff filed a reply consisting of eleven paragraphs, the first six of which are answers to the matter set forth in the affidavit of defense filed by the defendant and the other five paragraphs are answers to the new matter.
The plaintiff attempts to set up an innovation by answering to the matters in the affidavit of defense. Had the defendant answered paragraphs one to five under the heading of new matter, the same would have been in compliance with the Act of April 22, 1929, P. L. 627.
We know of no statute or decided case wherein the practice attempted by the plaintiff is countenanced; therefore, the same should be stricken off as the pleading is not in compliance with the said act of assembly.
Now, therefore, August 5, 1931, the rule to strike off plaintiff’s reply is made absolute, with leave to the plaintiff to file a new reply in accordance with this opinion within fifteen days from this date.
From William A. Wilcox, Scranton, Pa.