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Adam Miller, Inc. v. Florida East Coast Railway Co.

125 N.Y.S. 1015 Court N.Y. City Ct. English

Delivered by FINEEITE, J.

Contents

Majority

p. 1015
(69 Misc. Rep. 73.)
ADAM MILLER, Inc., v. FLORIDA EAST COAST RY. CO.
(City Court of New York, Special Term.
September, 1910.)

Headnote

Pleading (§ 364[1] )—Irrelevant Defense—Motion to Strike.
In an action for breach of contract, a defense “that defendant duly performed all the conditions and covenants in said agreement contained on its part to be performed,” in addition to the general denial, will be stricken out as irrelevant, under Code Civ. Proc. § 545.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec. Dig. § 364.*]
Action by Adam Miller, Incorporated, against the Florida East Coast Railway Company. On motion to strike out certain words in a •defense as irrelevant. Motion granted.
Richard J. Donovan, for plaintiff.
George S. Scofield, for defendant.

Motion to strike out certain words in the second defense of the admitted answer, on the ground that the same is irrelevant and redundant, under section 545 of the Code of Civil Procedure.

p. 1016
The facts alleged in the complaint are denied by the answer, and in addition thereto'defendant sets up a separate defense: '
“That the defendant duly performed all the conditions and covenants in said agreement contained (the agreement described in the complaint) on its part to be performed.”

This defense, so set forth, should be stricken out. Rogers v. Morton, 46 Misc. Rep. 494 , 95 N. Y. Supp. 49 ; Stieffel v. Tolhurst, 55 App. Div. 532 , 67 N. Y. Supp. 274 .

In Blaut v. Blaut, 41 Misc. Rep. 572 , 85 N. Y. Supp. 146 , the court held:

“Denials can be proven under the first nine paragraphs of the complaint, and their repetition does not strengthen the plaintiff’s pleading. They are not a necessary or proper part of the separate defenses. The very theory of ¿n-affirmative defense is that; without denials of the allegations of the complaint, the defendant can defeat the plaintiff by new matter pleaded. Besides, the plaintiff is aggrieved by the presence of these .denials. A defense which contains a general denial is not demurrable, even though the matter pleaded does not constitute a defense.”

In Rogers v. Morton, supra, the court held r

“If the plaintiff cannot with safety demur to a pleading containing an immaterial allegation or denial of fact, he has his remedy under the Code, and should first move to strike out said allegation or denial.”

In Stieffel v. Tolhurst, supra, the court held:

“No part of a pleading will be stricken out as irrelevant or redundant, unless the court can see that the moving party is aggrieved by it, and that striking it out will do no harm to the pleader. In the ease of redundant denials, which seriously affected the moving party’s right to demur to an affirmative defense coupled with them, the court considered that as the denials added nothing to the affirmative defense, and were already set up in the earlier portions, of the answer, they should be stricken out.” State of South Dakota v. McChesney, 87 Hun, 293 , 34 N. Y. Supp. 362 ; Fletcher v. Jones, 64 Hun, 274 , 19 N. Y. Supp. 47 .

The motion is therefore granted, with leave to defendant to serve ah amended answer on payment of $10 costs.

Motion granted.

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