Smith v. American Turquoise Co. — 84 N.Y. Sup. Ct. 192

Majority

p. 192

Alfred H. Smith and Another, Appellants, v. The American Turquoise Company, Respondent.

Headnote

Defense — cannot be determined to be bad on a motion ■ — the remedy is by demurrer.

Whether a defense to an action set up in an answer is or is not had, cannot he determined on a motion; the proper remedy is hy demurrer.

Appeal by the plaintiffs, Alfred H. Smith and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the l^th day of January, 1894, denying the plaintiffs’ motion to strike out certain parts of the defendant’s answer as irrelevant and immaterial to the issues.

F. Bien, for the appellants.

I). MoOlivre, for the respondent.

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 ten dollars costs and disbursements.

Eollett and PaeKee, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.