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Burke v. New York, New Haven & Hartford Railroad

59 N.Y. Super. Ct. 569 27 Jones & S. 569 Court N.Y. Super. Ct. Decision date 1891-05-04 English

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p. 569
PATRICK J. BURKE, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

Headnote

Irrelevant matter, striking out—An allegation in an answer “ The defendant reserving the objection that this action cannot be maintained by reason of the fact that the summons herein was not served on the defendant by an officer authorized by law to coiled an execution issued out of the Superior Court of the city of New York and without prejudice by appearing to defend, to its right lo insist upon the objection answers the complaint as follows: ” Held, that the order striking out this matter should be affirmed.
Before Sedgwick, Ch. J., and McAdam, J.
Decided May 4, 1891.
Appeal from an order.
Page & Taft, attorneys and of counsel, for appellant.
Henry Wehle, attorney and of counsel, for respondent.
p. 570
The Court held (per Curiam) as stated in the headnote, and affirmed the order upon the opinion of Freedman, J., at special term, which was as follows :

“If the objection sought to be reserved by the answer, and which is therein set forth before the statement of the first defence, does not consist of issuable matter, it ought to be stricken out. o

“ If it is intended to be issuable matter and relied upon as a defence, it should be pleaded as such and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer.

“Upon due consideration of the pleadings I have come to the conclusion that the motion to strike out should be granted, with $10 costs, unless the defendant within twenty days amend the answer by specifically pleading the matter referred to as a defence and by separately stating and numbering such defence and pay the said costs.”