Armstrong v. Phillips — 14 N.Y.S. 582

Majority

p. 582

Armstrong v. Phillips, Commissioner.

(Supreme Court, General Term, Third Department.

May 21, 1891.)

Headnote

1. Pleading—Motions to Strike Out—Scandalous Matter.

Code Civil Proc. N. Y. § 545, provides that “irrelevant, redundant, or scandalous matter contained in a pleading maybe stricken out upon the motion oí a person aggrieved thereby. ” Section 494 provides that “the plaintiff may demur to * * * defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof. ” Held, that a motion to strike out scandalous matter in an answer, and not a demurrer thereto, whereby plaintiff is forced to confess the truth of the allegation, is the proper remedy.

2. Amendment—Time Allowed—Service by Mail.

Code Civil Proc. N. Y. § 542, provides: “Within twenty days after a pleading or the answer on demurrer thereto is served, * * * the pleading may be at once amended by the party, of course, ” etc. Section 79S provides, where “the adverse

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party has a specified time after notice or service within which to do an act, if service is made through the post-office, the time so required or allowed is double the time specified. ” Defendant served a scandalous answer by mail, August 9th. Notice of motion to strike out the scandalous matter was served August 26th, to be heard September 9th. Defendant served an amended answer, September 5th. Held, that defendant could not, by serving his original answer by mail, give himself double time in which to amend it; the adverse party, and not himself, being the one entitled to double time.

Appeal from special term, Clinton county.

Action by Thomas Armstrong against Peter Phillips, commissioner of highways. The answer was served by mail, August 9, 1890. Notice .of this motion was served August 26, 1890, to be heard September 9, 1890. September 5, 1890, the defendant served an amended answer by mail, in which no portion of.the matter sought to be stricken out was. inserted. This answer was seasonably returned to defendant’s attorneys with this indorsement; “Returned for the reason that defendant’s time to answer has expired, and that a motion is pending;” signed by the plaintiff’s attorney. Plaintiff appeals from an order denying his motion to strike out defendant’s second answer. Code Civil Proc. N. Y. § 545, provides that “irrelevant, redundant, or scandalous matter contained in a pleading may be stricken out upon the motion of the person aggrieved thereby.” Section 494 provides that “the plaintiff may demur to * * * a defense consisting of new .matter contained in the answer, on the ground that it is insufficient in law upon the face thereof.” Section 542 provides that “within twenty days after a pleading, or the answer or demurrer thereto, is served, * * * the pleading may be at once amended by the party, of course, ” etc. Section 798 provides, where “the adverse party has a specified time after notice or service within which to do an act, if notice is made through the post-office, the time so required or allowed is double the time specified. ”

Argued before Learned, P. J., and Mayham and Landon, JJ.

T. Armstrong, for appellant. Palmer, Weed & Kellogg, for respondent.

Part of the “second” answer was scandalous, another part of it irrelevant, and the whole of it demurrable. Plaintiff’s motion to strike it out, in whole or in part, was denied, because—First, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served, but within due time, and having omitted therefrom the whole objectionable count, the subject-matter of the motion was no longer before the court, and the motion was superseded. Goodman v. Robb, 41 Hun, 605 , is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith, to protect the party’s supposed rights. The scandalous matter here was obviously inserted, not to'protect the defendant, but to insult the plaintiff; and if the plaintiff had no remedy against it, except by demurring and thereby confessing the truth of the insulting matter, the defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb, ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. See Carpenter v. West, 5 How. Pr. 53 ; McVey v. Cantrell, 8 Hun, 522 . The defendant had but 20 days in which to serve his amended answer as of course. Section 542, Code Civil Proc. He could not, by serving his original answer by mail, give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. Section 798, and Throop’s note. It follows that the amended answer was properly returned, and the motion

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was not superseded, and ought to have been granted. Order reversed, with $10 costs and printing disbursements, and motion granted, without costs. All concur.

Cases cited

Carpenter & Wilcox v. West & Van Benthuysen 5 How. Pr. 53 N.Y. Sup. Ct. p. 583