Edison v. Press Pub. Co. — 83 N.Y.S. 174

Majority

p. 174

(85 App. Div. 376.)

EDISON v. PRESS PUB. CO.

(Supreme Court, Appellate Division, First Department.

July 7, 1903.)

Headnote

1 Pleadings — Striking Out Allegations — Repleading Allegations Stricken.

The original answer in an action for libel contained several defenses^ and in the second defense to the first cause of action defendant pleaded: in full certain facts on which it relied. In the other defenses these facts-were set forth as follows: “The defendant repeats and realleges each andl every paragraph of the second defense to the first, cause of action, with; like effect as if here fully set forth.” Certain allegations in the secondt defense to. the first cause of action were thereafter stricken out, on plaintiff’s motion, as irrelevant and immaterial. Eelé not to preclude defendant from inserting in the other defenses mentioned the allegations thus-stricken out.

Appeal from Special Term, New York County.

Action by Thomas A. Edison, Jr., against the Press Publishing-Company. From an order denying a motion to compel plaintiff to-accept service of an amended answer, defendant appeals.

Reversed..

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.

W. H. Van Benschoten, for appellant.

Louis Hasbrouck Newkirk, for respondent.

This is a libel action. The original answer contained several defenses, and in the second defense to the first cause of action the defendant set forth in full certain facts upon which it relied. In the third defense to the first cause of action, and in the second and third defenses to the second cause of action, these facts were set forth by an allegation as follows: “The defendant repeats and realleges each and every paragraph of the second defense to the first cause of action, with like effect as if here fully set forth.” The plaintiff was successful in having stricken out on motion, as irrelevant and immaterial, certain allegations of the second defense to the first cause of action. As these were thus stricken out, the defendant could no longer refer to them, and therefore, in the other defenses, they were set forth in full. The plaintiff, however, refused to accept the amended answer in this form, claiming that the defendant had no right to insert, in the other defenses mentioned, the allegations which in the second defense to the first cause of action had been stricken out. The court at special term, having agreed in this view, denied the motion made by the defendant to compel the plaintiff to accept the amended answer.

We think this was error, and for the reason that allegations which may be irrelevant and immaterial, as they appear in one defense, may, as they appear in another defense, be relevant and material; and, as the plaintiff’s motion was directed merely to striking out the allegations in one defense, the granting of such motion did not necessarily import a decision that they were improper as part of the subsequent defenses. We think, therefore, that, the defendant having in the amended answer omitted the objectionable features of the second defense to the first cause of action, which was the relief which the plaintiff sought on his motion, the latter was not warranted in insisting that such allegations be stricken from the subsequent defenses, but should have accepted the amended answer. It may be that upon a motion these allegations would be deemed irrelevant and immaterial with respect to the subsequent defenses, but upon that question the defendant is entitled to its day in court.

The order, therefore, should be reversed, with $10 costs and disbursements, and the motion granted, without costs, and with leave to the plaintiff, if he deems himself aggrieved, to move to strike out any objectionable matter contained in the subsequent defenses. All concur.