Jones v. Jones — 4 N.Y.S. 628

Majority

p. 628

Jones et al. v. Jones et al.

(Superior Court of New York City, General Term.

March, 1889.)

Headnote

Pleading—Irrelevancy—Motion to Strike Out.

In ejectment by the heirs of a grantor for the benefit of his grantee against persons holding adversely to the grantor, one of the heirs, who was a minor over 14 years of age, was made defendant. She answered by guardian ad litem, admitting that the defendants, other than herself, were holding adversely to plaintiffs and herself, but alleged that the alleged deed to the grantee had been obtained by fraud, and was void, and prayed that it might be canceled, and that she and plaintiffs recover the lands as tenants in common. Held, that the new matter of the answer could not be stricken out as irrelevant, as it was relevant to the position taken by defendant, though that position may not have been correct.

Appeal from special term.

Action of ejectment by Morgan Jones and others, as heirs of John Jones, deceased, against Joseph H. Hawes and others, and Adelaide Jones, to recover land held by the defendants, except Adelaide Jones, adversely to plaintiffs. Plaintiffs sued as the heirs of John Jones, deceased, for the benefit of Morgan Jones, to whom the deceased had conveyed the land. Adelaide Jones was also an heir of John Jones, deceased, but, being a minor over 14 years of age, and refusing to have a guardian appointed, she was made a defendant. Her guardian ad litem filed an answer alleging her infancy, and admitting the possession of the defendants adversely to herself and the plaintiffs, and alleged that, at the time of the so-called conveyance to Morgan Jones, the deceased was of unsound mind, and that if he executed said conveyance it was obtained by fraud, and void, and prayed that the deed be canceled, and that plaintiffs and this defendant recover the land for their own benefit from the

p. 629

defendants. From an order denying plaintiffs’ motion to strike out this portion of the answer as irrelevant plaintiffs appeal.

Argued before Sedgwick, O. J., and Truax, J.

T. B. Clarkson, for appellants. B. B. Ogden, for respondents.

I am of opinion that the learned judge below did not err in refusing to strike out the allegations of the answer as irrelevant. They were not irrelevant to the position taken by the defendant, either as a defense or by way of counter-claim. Her position may not have been correct. That could not be determined against her, on the motion to strike out matter as irrelevant. The order should be affirmed, with costs.

Truax, J., concurred.