Whitehall Lumber Co. v. Edmans — 22 N.Y. St. Rep. 199

Majority

p. 199

Whitehall Lumber Co. (Limited), Resp’t, v. Walter J. Edmans, App’lt.

(Supreme Cowrt, General Term, Third Department,

Filed March 16, 1889.)

Headnote

1. Practice—When irrelevant matter stricken out—Code Crv. Pro., §§ 537, 538, 545.

There is no authority now in the Code for striking out an answer as ir- • relevant, that word having been omitted as being equivalent to frivolous, but matter which is irrelevant to the cause of action or to the defense may be stricken out.

2. Same—Remedy for defective counter-claim.

Whether matter which is set up as a counter-claim is a valid defense-should be determined either by demurrer or by notice on the trial, and not by a summary notice to strike it out as redundant or irrelevant.

Gurdon G. Shrauder, for app’lt; Potter & Lillie, for resp’t.

—This is an appeal from an order striking out the fourth paragraph in defendant’s answer as irrelevant and redundant.

It is not redundant because it is not a repetition of anything else in. this manner.

There is no authority now in the Code for striking out an answer as irrelevant. That word has been omitted as. being equivalent to frivolous. Sections 537 and 538, and' note to last section.

It is only a “ sham” answer which can be stricken out.

p. 200

And that means a false answer. But irrelevant matter may be stricken out (section 545). That is matter which is irrelevant to the cause of action or to the defense which the party attempts to allege.

This fourth paragraph sets up damages arising from the breach by the plaintiff of the contract of sale alleged in the complaint; and in the making of which contract the complaint avers that defendant made the false representations. This is “the semblance of a cause of action.” Whether it was a valid counterclaim within the Code is a question which should be determined either by demurrer or by notice on the trial, and not by a summary motion to strike it out as redundant and irrelevant. “The sufficiency of a defense cannot properly be determined on a motion to strike out a pleading.” Walter v. Fowler, 85 N. Y., 621 .

“The power given to a court to expunge matter from a pleading upon motion for irrelevancy refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading.” Hagerty v. Andrews, 94 N. Y., 197 .

The plaintiff’s counsel, in his brief, says that if such a cause of action exists, defendant may recover upon it; but that it constitutes no defense in this action, which is on tort. But the cases above cited show that, if this answer is no defense, the remedy is by demurrer or by motion on the trial, and not by this summary motion.

The order should be reversed with ten dollars costs and ■printing disbursements, and motion denied with ten dollars •costs.

1 Ingalls and Landon, JJ., concur.