Crotty v. Erie Railroad — 137 N.Y.S. 1102

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p. 1102

CROTTY v. ERIE R. CO.

(Supreme Court, Appellate Division, Second Department.

November 15,1912.)

Headnote

Pleading (§ 364*)—Irrelevant, Redundant, and Scandalous Matter.

Code Civ. Proc. § 545, provides that irrelevant, redundant, and scandalous matter contained in a pleading may be stricken out on the motion of the person 'aggrieved. Held, that such section does not authorize the striking out of an entire cause of action, or an entire defense, as scandalous and irrelevant, but only the matter thereof which is irrelevant, redundant, or scandalous.

[Edl Note.—Por other cases, see Pleading, Cent. Dig. §§ 1156-1162: Dec. Dig. § 364.*]

Appeal from Special Term, Orange County.

Action by Michael Crotty against the Erie Railroad Company. Cross-appeals from parts of an order of the Special Term, sustaining

*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

p. 1103

in part and denying in part a motion to strike out certain defenses. Modified and affirmed.

See, also, 149 App. Div. 262 , 133 N. Y. Supp. 696 .

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

John C. Robinson, of New York City, for plaintiff.

Elbert N. Oakes, of Middletown, for defendant.

The order, in so far as it strikes out the first and separate defense and the second and separate defense as scandalous and irrelevant, and the third and separate defense as irrelevant, must be reversed, inasmuch as section 545 of the Code of Civil Procedure does not authorize the striking out of an entire cause of action, or an entire defense, but only the matter thereof which is irrelevant, redundant, or scandalous. Tierney v. Helvetia Swiss Fire Ins. Co., 129 App. Div. 694 , 114 N. Y. Supp. 139 , and cases cited; Gibson v. McDonald, 139 App. Div. 51 , 123 N. Y. Supp. 504 . It follows that the order, in so far as it denies the motion to strike out the fourth separate defense, must be affirmed.

The order is modified in accordance with this opinion, and, as mod- - ified, is affirmed, with $10 costs and disbursements to the defendant appellant.