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Tierney v. Helvetia Swiss Fire Insurance

114 N.Y.S. 139 Court N.Y. App. Div. Decision date 1908-12-30 English

Delivered by MILLER, J.

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p. 139
TIERNEY v. HELVETIA SWISS FIRE INS. CO. et al.
(Supreme Court, Appellate Division, Second Department.
December 30, 1908.)

Headnote

1. Pleading (§ 352[1] )—Motions—Striking Out Defense—Insufficiency.
Code Civ. Proc. § 545, permitting irrelevant, redundant, or scandalous matter contained in a pleading to be stricken, does not authorize the striking of an entire action or defense, even if insufficient.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1078; Dec. Dig. § 352.*]
2. Appeal and Error (§ 1172*)—Disposition—Modification.
Where an order improperly directed the entire defense to be stricken, and defendant appealed from the order as a whole, but did not object to striking one of the paragraphs, the order will be modified, so that only that paragraph be stricken, and affirmed, as modified.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4555; Dec. Dig. § 1172.*]
p. 140
Appeal from Special Term, Kings County.
Action by John J. Tierney against the Helvetia Swiss Fire Insurance Company and another. From an order striking out a defense, the defendant named appeals. Modified and affirmed.
Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Frederick B. Campbell (Charles M. Tur ell, on the brief), for appellant.
Royall Victor, for 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 defense, though insufficient, cannot be stricken out as irrelevant. Hanson v. Collier, 119 App. Div. 794 , 104 N. Y. Supp. 787 ; Cardeza v. Osborn, 33 Mise. Rep. 46, 65 N. Y. Supp. 450 , affirmed 54 App. Div. 636 , 66 N. Y. Supp. 1138 ; Stroock Plush Co. v. Talcott (Sup.) 113 N. Y. Supp. 314 .

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

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