Rankin v. Bush-Brown — 108 A.D. 294

Majority

p. 294

George C. Rankin, as Receiver of the Elmira National Bank, Respondent, v. Henry K. Bush-Brown, Appellant, Impleaded with John J. Bush and Fanny Brooks Bush, Defendants.

Headnote

Motion to strike out irrelevant matter—the validity of a defense not determined thereon.

The sufficiency of a defense set up in an answer should be determined upon a demurrer or upon the trial; it cannot be determined upon a motion to strike out portions of such defense as irrelevant."

Appeal by the defendant, Henry K. Bush-Brown, 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 New York on the 12th day of August, 1905, granting the plaintiff’s motion to'strike out certain allegations of the appellant’s answer as irrelevant and redundant.

C. Tracey Stagg, for the appellant.

Edward B. Whitney, for the respondent.

Without expressing any opinion upon the relevancy of the facts alleged in the answer, which were stricken out by the court below as irrelevant, as a defense to thei plaintiff’s cause of action, I do not - think that these allegations are so plainly irrelevant as to justify the court in striking them out. This answering defendant is a surety

p. 295

upon a bond given to the Elmira National Bank by John J. Bush, who was its cashier. The portions of the answer stricken out substantially determined the sufficiency of a separate defense, and that question should be determined by demurrer, or upon the trial, and -not by a motion to strike out as irrelevant. (Smith v. American Turquoise Co., 77 Hun, 192 .) I think the defendants should be allowfed to set forth these facts, and have the court determine upon the trial of either an issue of law or an issue of fact the question as to whether any defense is alleged.

- The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, P. J., Patterson,. Laughlin and ' Olarke, JJ., concurred.

' Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.