Smith v. American Turquoise Co. — 59 N.Y. St. Rep. 830

Majority

p. 830

Alfred H. Smith et al., App’lts, v. American Turquoise Company, Resp’t.

(Supreme Court, General Term, First Department,

Filed April 13, 1894.)

Headnote

Pleading—Answer—Sufficiency.

The sufficiency of the defense cannot be raised by a motion to strike out portions of the answer, but only by demurrer.

Appeal from an order denying a motion to strike out portions of the answer.

Franklin Bien, for app’lt; David McGlure, for resp’t.

It would seem, from an examination of the papers upon this appeal, that the plaintiffs seek upon this motion to test the sufficiency of a defense set up in the answer. It is true that the motion.is directed to a paragraph of the defense, but'it is evident that in this attack upon this paragraph it is sought to have it adjudged that the defense set up is bad. If we understand the theory of the Code, such an issue must be disposed of .upon demurrer, and cannot be determined by motion. If the defense set up is available, the paragraph objected to cannot be considered to be either irrelevant, redundant, or scandalous; and it is only upon the theory that the defense cannot prevail that the paragraph becomes irrelevant.

The order should be affirmed with $10 costs and disbursements.

All concur.