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Barber v. General Asphalt Co.

125 A.D. 412 Court First Department, Decision date 1908-04-24 English

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p. 412
Amzi L. Barber, Appellant, v. General Asphalt Company and Others, Respondents.
First Department,
April 24, 1908.

Headnote

Pleading — irrelevant matter—motion to strike out.
A motion to strike out as irrelevant certain portions of answers served more than a year before the motion is made, is untimely, and will be denied.
Where there are six defendants, whose answers are identical, it is idle to strike from one answer that which is contained in live others.
Appeal by the plaintiff, Amzi L. Barber, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 6th day of December, 1907, denying the plaintiff’s motion to strike out certain allegations from the answer of the defendant Arthur W. Sewall and of the other defendants.
Hartwell Cabell of counsel [Niles & Johnson, attorneys], for the appellant.
John D. Lindsay of counsel [Hicoll, Anable, Lindsay & Fuller, attorneys], for the respondents.

Plaintiff sues the General Asphalt Company and its directors for an alleged libel contained in a printed pamphlet containing the annual report of the defendant company to its stockholders. The answer occupies 106 pages of the printed record and covers matters extending from 1817 to the commencement of the suit.

We are of the opinion that certain portions of the answer are irrelevant and might well have been stricken out, were it not for the fact that amended answers of the defendant company and four of the individual defendants, identical in form with that at bar, were served in October, 1906, more than a year before the motion was made, and so stand as served. The defendant Sewall served the answer under consideration on October 4, 1907, and as to him this motion was timely. Inasmuch as all of the defendants are sued for the same libel in the same publication, upon the same

p. 413
ground, as being officers óf the company which issued the annual report containing the matter complained of, it seems idle to strike from one answer that which is contained in five others.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Present — Ingraham, McLaughlin, Laughlin, Olarke and Scott, JJ.

Order affirmed, with ten dollars costs and disbursements.