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Tierney v. Helvetia-Swiss Fire Insurance

129 A.D. 694 Court Second Department, Decision date 1908-12-30 English

Delivered by Miller, J.:

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p. 694
John J. Tierney, Respondent, v. Helvetia-Swiss Fire Insurance Company, Appellant, Impleaded with Central Trust Company of New York, Defendant.
Second Department,
December 30, 1908.

Headnote

Practice — pleading— motion to strike out irrelevant matter.
On a motion under section 54S of the Code of Civil Procedure to strike out irrele vant, redundant and scandalous matter contained in a pleading the entire cause of action or defense cannot be stricken out, but only the irrelevant matter.
The sufficiency of matter pleaded as a defense cannot be tested in the motion under said section.
Appeal by the defendant, the Helvetia-Swiss Fire Insurance Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the oifiee of the clerk of the county of Kings on the 13tli day of August, 1908, striking out as irrelevant an entire defense contained in the said defendant’s answer.
Frederick B. Campbell [Charles M. Turell w ith him on the brief], for the appellant.
Royall Victor, for the respondent.

Section 545 of the Code of Civil Procedure authorizes the striking out of “irrelevant, redundant, or scandalous matter, contained in a pleading.” That section does not authorize the striking out of-an entire cause of action or defense, but only of irrelevant, redundant or scandalous matter contained therein! The sufficiency of the matter pleaded as a defense cannot thus be tested. An entire

p. 695
defense, though insufficient, cannot be stricken out as irrelevant. (Hanson Co. v. Collier, 119 App. Div. 794 ; Cardeza v. Osborn, 32 Misc. Rep. 46 ; affd., 54 App. Div. 626 ; Stroock Plush Co. v. Talcott, 129 id. 14.)

It is conceded that the defendant offered no objection to the striking out of the 8tli paragraph, but the appeal is taken from the entire order. It should, therefore, be modified so as to provide that only the 8th paragraph of the answer be stricken out, and as thus modified affirmed, with costs of this appeal.

Jenks, Hooker, Gaynor and ¡Rich, JJ., concurred.

Order modified in accordance with the opinion, and as modified affirmed, with ten dollars costs and disbursements.

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