Witherbee v. Slayback

Headnote

1. Pleading—Surplusage will be stricken out on motion.

Matter in an answer which adds nothing to the completeness of the statement of a defense therein set np, but is a mere recital of evidence tending to establish it, will be stricken out, on motion.

2. Matter improperly pleaded will not be retained.

Where such matter, considered in one aspect, might constitute a separate defense it will not be retained, if improperly pleaded.

Appeal from an order of special term, held by Mr. Jus.tice Fish, November 22, 1887, striking out certain portions of the fourth paragraph of the answer herein as irrelevant. The action is brought against defendants as directors of a corporation, known as the Port Henry Steel and Iron Company, limited, to charge them with the debts of such cor

porations, by reason of its failure to file certain annual reports. Also that defendants, as such directors, made and filed a false certificate of paid up capital stock of said corporation.

The answer admits at the time alleged in the complaint, said corporation became indebted to the plaintiffs, and as collateral security for that indebtedness gave to the plaintiffs certain chattel mortgages, which indebtedness by the terms of the mortgage became due and payable on or prior to January 1, 1887 The fourth paragraph of the answer is as follows, the words stricken out being enclosed in parenthesis: “4th. And said defendants, further answering said amended complaint, upon their information and belief state that both before and after said mortgages were so executed and delivered as aforesaid, it was agreed by and between plaintiffs and the said corporation or its officers, that in default of payment of the debts secured by said mortgages, said plaintiffs would take said property, covered thereby, in full extinguishment and payment of the indebtedness secured thereby; and that subsequent thereto and prior to the 18th day of January, 1887, it was understood that a sale of said property, so described and covered by said mortgages, should be made at public auction by the plaintiffs, tinder said mortgages for the purpose solely of perfecting title thereto in the plaintiffs; that in pursuance of said understanding and agreement, and in order to carry the same into effect, the said plaintiffs sold all of said property covered by said mortgages at public sale on or about the 18th day of January, 1887; and said plaintiffs purchased the same for $1,000; (that said sale was irregularly made and unfairly conducted; that no portion of the property was in sight at the place where said sale was had and no person or persons were present thereat, except the plaintiffs or some persons representing them; that said property was1"sold in a lump and together, and not in parcels, although the same consisted of several articles and of different values, and that plaintiffs made but one bid thereon, after which and without waiting, the property was struck down to them for the' sum stated); that none of the officers of said corporation attended said sale for the reason that the plaintiffs had agreed to take said property previously thereto in full payment of its indebtedness as hereinbefore stated; (that the value of said property so sold by plaintiffs and covered by said mortgages at the time of the sale aforesaid was $60,-000); and that after the sale of said property, said plaintiffs took the same into their actual custody and possession, claiming to own the same; (and said plaintiffs still have possession of said property, except that some articles described in said mortgages have been sold by them and for

which they have realized in money between $10,000 and $15,000.”)