Nordlinger v. McKim — 38 N.Y. St. Rep. 886

Majority

p. 886

Jacob D. Nordlinger et al., App’lts, v. Hollins McKim et al. Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 15, 1891.)

Headnote

1. Pleading—Sham and irrelevant allegations in answer.

Where the allegations of an answer are relevant to the issue and create material inquiries to be settled by the trial, they cannot be stricken out as sham or irrelevant, nor as redundant, although needlessly repeated and elaborated.

2. Same.

The court will not interfere with a pleading unless it is plain that the party complaining will be prejudiced in his case by allowing the pleading to remain uncorrected.

Appeal from order denying motion to strike out parts of the answer of the defendants.

W. N. Cohen, for app’lts; J. Aspinwall Hodge, Jr., for resp’ts.

The action is brought to recover money alleged to have been received by the defendants, on checks owned by the plaintiffs and collected by means of the fraudulent and forged endorsement of their names upon them. The defendants by their answer have denied the material allegations of the complaint. And to their denials have added other allegations which were included in the motion. These allegations aver that the endorsements were made by a person in the plaintiffs’ employment, whom they retained after they became aware that he was unreliable and untrustworthy, and that it was attributable to their own conduct that he was able to make use of the checks and allow the money to be collected upon them. These statements, it is true, have been unnecessarily, and it may be added, improperly elaborated, extended and repeated, but they are nevertheless relevant to the, issue, and created material enquiries to be settled by the trial. And so far they cannot be stricken out, either as sham or irrelvant, under §§ 538 and 546 of the Code of Civil Procedure.

p. 887

It certainly cannot be said that they do not present the semblance of a defense, although they have been needlessly repeated, and where that cannot be held, they cannot be stricken out Walter v. Fowler, 85 N. Y., 621 . They might without detriment to the defendants be very much reduced in bulk, but that it is not the office of the general term to do. On the contrary, it is the practice not to interfere, unless it is plain that the party complaining will be prejudiced in his case by allowing the pleading to remain uncorrected. Lugar v. Byrnes, 15 Civ. Pro., 72; 15 N. Y. State Rep., 970. And that the plaintiffs will be so prejudiced by these extended and minute statements, does not appear.

If the third, fourth and fifth subdivisions of the answer present no defense, the regular mode for contesting them is by the service of a demurrer, and not by way of this motion. But that probably could not be maintained, for there are facts in each decision alleged, which, if proven, may prevent the plaintiff from succeeding in the action.

The sixth subdivision of the answer rests upon the conduct of the plaintiffs after their alleged discovery of the misconduct of their bookkeeper and cashier, by which it is averred that the defendants have been deprived of their right to resort to him for indemnity in case of loss accruing to them by reason of his acts, and by which they obtained satisfaction for the loss they encountered through his misconduct It cannot be now held that this part of the answer discloses no defense, although much more has been stated than was requisite for this purpose. That is the entire fault of the answer. For while facts are alleged that are material and necessary to the defense, far too much has been said to color and comment upon them to be consistent with the clearness and conciseness of pleadings in legal actions. At the same time the plaintiffs have been deprived of none of their rights by this unjustifiable waste of words. The order should be affirmed, but without costs to the respondents.

Van Brunt, P. J., concurs.