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Eaton v. Burnett

48 N.Y. Super. Ct. 548 16 Jones & S. 548 Court N.Y. Super. Ct. Decision date 1882-12-04 English

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p. 548
LOUIS K. EATON, Respondent, v. HELEN BURNETT et al., Appellants.
Before Sedgwick, Ch. J., Freedman and Russell, JJ.
Decided December 4, 1882.

Headnote

Pleading—motion to ttrike out—when not granted—practice.
Appeal from an order striking out certain parts of an amended answer, as irrelevant and redundant.
The action was upon a bond.
On motion, the court below struck out paragraphs 4, 5, 6, 7, 8, 9 and 10 of the answer as irrelevant and redundant. Paragraph 11 contained a denial that the contingency upon which the obligation of the bond depended had occurred, but such fact was not pleaded in form nor numbered as a separate defense.

The court at General Term, held :

“ It is quite clear that the 4th subdivision of the answer was redundant, being a mere reiteration of a similar allegation in the complaint. The allegations in the subsequent subdivisions (5-10) are unnecessarily prolix; but taken as a whole I am not prepared to say that they do not constitute a plea of such former adjudication against the plaintiff’s claim as would, if true, defeat his right of action. When there is a semblance of a cause of action or defense set up in the pleading, its sufficiency cannot be determined on motion to strike out as redundant or irrelevant. It seems that the proper way to test the validity of the pleading is by demurrer or by motion on trial (Walter v. Fowler, 85 N. Y. 621 ; Fettretch v. McKay, 47 Id. 426 ; Collins v. Suau, 7 Robt. 94; Trinity Church v. Higgins, 48 N. Y. 532 ). It seems to me the plaintiff’s proper remedy was, first to move that the defendant state the defenses separately, and then to test the sufficiency of these allegations by a demurrer.

p. 549
Winsor & Marsh, for appellants.

Abel E. Blackmar, for respondent.

Opinion by Russell, J.; Sedgwick, Ch. J., and Freedman, J. concurred.

Order affirmed as to fourth subdivision of the answer and reversed as to the others, without costs.

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