Opinion
October 5, 1942.
In an action brought by the plaintiff on a promissory note, claimed by assignment from the payee, the defendant has been permitted to serve an amended answer setting up an offset or counterclaim alleging damages suffered by the defendant through ultra vires acts of plaintiff's assignor committed while acting as an officer of the defendant. From so much of the order as grants the foregoing relief the plaintiff appeals. Order modified on the law by inserting after the third ordering paragraph a paragraph reading — "Ordered that the plaintiff, if so advised, may serve a reply setting up the Statute of Limitations, and it is further." As so modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to the appellant. The reply herein provided for may be served within ten days from the entry of the order hereon. The court's exercise of discretion was proper under the circumstances disclosed by the record, but the order as entered did not give to the plaintiff the right to serve a reply. Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.