Armstrong v. Phillips — 37 N.Y. St. Rep. 858

Majority

p. 858

Thomas Armstrong, App’lt, v. Peter Phillips, as Com’r, Resp’t.

(Supreme Court, General Term, Third Department,

Filed May 21, 1891.)

Headnote

Pleading—Scandalous matteb mat be stbicken out on motion, although IT IS ALSO DEMUBBABLE.

The defendant served an answer in an action, the second defense in which contained scandalous and irrelevant matter, and the whole of this defense was demurrable. The plaintiff made a motion to strike it out as scandalous and irrelevant. A short time before the motion came on, the defendant served an amended answer omitting the matter objected to. This was returned as not served in time. Sdd, that the motion should have been granted. That it was error for the court to deny the motion upon the ground that demurrer was the proper remedy, and also that the matter complained of had been omitted in the amended answer. That as to the matter confessedly scandalous, the plaintiff, in such a situation, is not to he compelled to admit its truth, as he must do when he demurs.

Appeal from an order denying a motion made by the plaintiff to strike out the “ second or further answer ” of the defendant upon the ground that specified parts thereof are scandalous and other parts are irrelevant and redundant

The answer was served by mail August 9th, 1890. Rotice of this motion was served August 30th, 1890, to be heard September 9th, 1890. September 5th, 1890, the defendant served an

p. 859

amended answer by mail in which no portion of this matter sought to be stricken out was inserted. This answer was seasonably returned to defendant’s attorneys'with this endorsement: “Returned for the reason that defendant’s time to answer has expired, and that a motion is pending,” signed by the plaintiff’s attorney.

T. Armstrong, for app’lt; Palmer, Weed & Kellogg, for resp’t.

Part of the “second” answer was scandalous, another part of it irrelevant, and the whole of it demurrable. Plaintiff’s motion strike it out, in whole or in part, was denied because, first, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served but within due time, and having omitted therefrom the whole objectionable count, the subject matter of the motion was no longer before the court and the motion was supesodsd

Goodman v. Robb, 41 Hun, 605 ; 5 N. Y. State Rep., 242, is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith to protect the party’s supposed rights. The scandalous matter here was obviously inserted not to protect the defendant, but to insult the plaintiff, and if thé plaintiff had no remedy against it, except by demurring and thereby confessing the truth of the insulting matter, tne defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. See Carpenter v. West, 5 How. Pr., 53 ; McVey v. Cantrell, 8 Hun, 522 .

The defendant had but twenty days in which to serve his amended answer as of course. Section 542. He could not by serving his original answer by mail give himself double time in which to amend it. It was the adverse party and not himself who acquired double time. § 798, and Throop’s note.

It follows that the amended answer was properly returned and the motion was not superseded and ought to have been granted.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.

Learned, P. J., and Mayham, J., concur.