Jones v. Farrington

Headnote

Pleading—Motion TO' strike out as irrelevant and redundant.

Averments in an answer in an action for board, alleged to have been furnished by plaintiff to a third person at the special instance and request of defendants that the account, if due and owing, was for board and lodgings furnished to a third person, and not to defendant or to any of his. family; that no action had been had to collect the amount of said third

person, and that defendant’s alleged promise to pay the same was to answer for the debt of another, and that there was no note or memorandum of such promise in writing, should not he stricken out as irrelevant and redundant.

Appeal from the order of the Westchester county court, striking out parts of the defendant’s answer as irrelevant . and redundant, and vacating an ex parte order that had been inadvertantly signed by Judge Mills upon the application of the defendant’s attorneys.

The complaint alleged:

First. That said plaintiff is an inn or hotel keeper in the village of White Plains, in the county of Westchester, and that the defendant resides in said county.

Second. That on or about the 18th day of February, 1888, an account was stated between the plaintiff and the defendant, whereby it appeared that the defendant was indebted to the plaintiff in the sum of ninety and 80-100 dollars, which amount defendant promised the plaintiff to pay him and did then and there pay on account thereof, to the plaintiff, sixty dollars, but no further sum has been paid on said indebtedness, and the sum of thirty and 81-100 dollars is still due on account thereof, as aforesaid.

Third. That there became due and owing in the last day of each of the thirteen weeks respectively next succeeding the 18th day of February, 1888, from the defendant to the plaintiff for board and lodging furnished at the agreed price of five dollars a week for each of said weeks by plaintiff to the defendant’s brother, at the special instance and request of the defendant, thirteen several sums of $5 each, amounting in all to the sum of $65, which said sum the said defendant promised and agreed to pay the plaintiff for the board and lodging aforesaid, and though thereunto duly requested, neither the said defendant nor any one on his behalf has paid the said sum of $65, or any part thereof, and the same is wholly due and owing from the defendant to the plaintiff, with interest.

Defendant answered as follows:

Defendant, for answer to the amended complaint, shows:

1. Admits his residence and the payment of sixty dollars, all as alleged.

2. Denies each and every allegation, and part thereof, in said complaint contained, not hereinbefore specifically admitted.

3. For further answer and a separate defense.

That plaintiff’s account runs back of dates stated for some years, and large sums have been paid thereon, amounts defendant knows not, and no balance was ever struck or settlement in full made, or account statpd.

That the alleged stated account, if due and owing, is due

and owing for board and lodging furnished to one James B. Farrington, and not to defendant, who is a married man, or to any of his family.

That the board and lodging furnished, as alleged in allegation three of said complaint, were, if furnished, furnished toone said James B. Farrington, and not to defendant or to any of his family.

That no action or proceeding at law has been had to collect of said James B. Farrington the sums sought to be recovered herein of defendant. This allegation is on information and belief.

That there is a defect and non-joiner of parties defendant to this action, in that said James B. Farrington, who is a necessary party defendant, has not been made a party defendant to this action. .

4. For further answer and a separate and distinct defense:

Reiterates, and makes part of this defense, the allegations contained in the third paragraph of this answer down to the words: “ That there is a defect of parties ;” and further shows that the alleged promises set forth in said complaint, if made, were special promises to answer for the debts of another, to wit: said James B. Farrington.

That no note or memorandum of such special promises, or contracts, was made in writing, or subscribed by the party to be charged therewith, to wit: defendant.

The court ordered stricken out as irrelevant and redundant all of said answer, with the exception of the part thereof from the beginning thereof down to the words: “That the alleged stated account,” and with the exception of the part thereof wherein it is alleged that there is a defect of parties, and with the exception of the demand of judgment and verification of said answer.