Stewart v. Forst — 72 N.Y. St. Rep. 795

Majority

p. 795

William R. Stewart et al., Resp’ts, v. Paul C. Forst, App’lt.

(New York City Court, General Term,

Filed February 7, 1896.)

Headnote

Pleading—Scandalous, irrelevant and redundant hatter.

A motion to strike from the answer an alleged defense, upon the ground that it is scandalous, irrelevant and redundant, must stand or fall upon the pleadings, and the rulings upon the evidence, under the pleading, as limited by the bill of particulars, must be left for the judge at the trial.

Appeal from an order striking out the second separate defense as scandalous, irrelevant and redundant.

Joel Krone, for app’lt; Bowers & Sands, for resp’ts.

—The landlord plaintiffs sue for unpaid rent of the -first flat of-an apartment house, and the tenant defendant sets up, as his second separate and distinct defense, that he was evicted by plaintiffs’ maintaining a disorderly house in and about the premises mentioned in the complaint and demised to him. The plaintiffs, upon an affidavit of their agent denying the maintenance of such disorderly house, and the pleadings, moved to strike from the answer this alleged defense, upon the ground that it was scandalous, irrelevant, and redundant; but such a motion must stand or fall upon the pleadings, and the rulings upon the evidence, under the pleading, as limited by the bill of particulars, must be left for the judge at trial. This alleged defense is not insufficient in law; and, under the same, even as limited by the bill of particulars, defendant may offer evidence, which must be admitted, even though the disorderly house was not maintained in the flat demised to defendant; for it must be remembered that, of an apartment house, the landlord retains control of the hallways and staircases.

The order must be reversed, with costs, and the motion denied, with $10 costs.