Van Derveer v. Woodworth — 44 N.Y. St. Rep. 361

Majority

p. 361

Theodore B. Van Derveer et al., Resp’ts, v. William H. Woodworth, App’lt.

(Supreme Court, General Term, Third Department,

Filed March 15, 1892)

Headnote

Pleadings—Redundant and irrelevant allegations.

In an action to recover possession of certain property levied upon by defendant, an officer of a city, and who, as such, had seized the same under a warrant for the collection of a special assessment for street grading, it is error to strike out from the answer, as redundant and irrelevant, allegations showing the regularity of the corporate proceedings preceding the warrant under which he, as a corporate officer, claimed to take and hold the property in suit.

Appeal from order of special term, striking out certain portions of the answer.

Louis Id. Reynolds, for app’lt; F. P. White, for resp’ts.

We think those parts of the order of the special term striking out the third paragraph of defendant’s answer and awarding to plaintiff costs of the motion, should be reversed on the authority of Town of Essex v. The New York & Canada R. R. Co., 8 Hun, 361 . See, also, Bradstreet v. Bradstreet Co., 14 St. Rep., 260 , 261; Duprat v. Havemeyer, 18 W. Dig., 439; Williams v. Folsom, 57 Hun, 128 ; 32 St. Rep., 455 .

It is held in the cases above cited that a party should have a reasonable latitude in stating his cause of action or defense. The part of the answer stricken out by the court below could probably have been stated more briefly; possibly, it might have been safely omitted. We think, however, it was proper for the defendant to allege the facts showing the regularity of the corporate proceedings preceding the warrant under which he, as a corporate officer, claimed to take and hold the property in suit, and that the allegation stricken out was pertinent and competent in that regard. Certainly, it is quite clear that the retention of the said third paragraph in the answer cannot in any possible way injure the

p. 362

plaintiff, and, therefore, under the rule as laid down in the case above cited by a previous general term of this district, it should remain in the pleadings.

Those parts of the order appealed from, striking out the third paragraph of the defendant’s answer (except the figure 3 at the commencement thereof), and allowing the plaintiff costs of the motion, should be reversed; the residue of the order to stand, with ten dollars costs of the appeal and printing disbursements to the appellant.

Herrick, J., concurs; Mayham, P. J., not sitting.