Majority
p. 329(77 Hun, 192.) SMITH et al. v. AMERICAN TURQUOISE CO. (Supreme Court, General Term, First Department. April 13, 1894.) Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Headnote
Pleading—Sufficiency of Answer—How Questioned. The sufficiency of the defense contained in an answer cannot be raised by a- motion to strike out portions of the answer, but only by demurrer.Appeal from special term, New York county.
Action by Alfred H. Smith and another against the American Turquoise Company. From an order denying a motion to strike out portions of the answer, plaintiffs appeal. Affirmed.
Franklin Bien, for appellants.
David McClure, for respondent.
It would seem, from an examination of the papers upon this appeal, that the plaintiffs seek upon this motion to test the sufficiency of a defense set up in the answer. It is true that the motion is directed to a paragraph of the defense, but it is
p. 330
evident that in this attack upon this paragraph it is sought to have it adjudged that the defense set up is bad. If we understand the theory of the Code, such an issue must be disposed of upon demurrer, and cannot be determined by motion. If the defense set up is available, the paragraph objected to cannot be considered to be either irrelevant, redundant, or scandalous; and it is only upon the theory that the defense cannot prevail that the paragraph becomes irrelevant. The order should be affirmed, with $10 costs and disbursements. All concur.