Opinion
Argued May 22d 1931.
Decided October 19th, 1931.
Where the "unclean hands" alleged by the defendant are not unclean towards him in respect to the relief sought, the paragraph of the answer raising the doctrine will be stricken out.
On appeal from an order of the Court of Chancery advised by Vice-Chancellor Backes, who filed the following memorandum in disposing of complainant-appellant's motion to strike out the answer filed by the defendants-respondents:
"The complainant's title to the ten feet is so imperfectly set up in the bill that paragraph 6 will not be stricken out of the answer. In paragraph 1 of the answer the defendant does not admit the complainant has title, he only concedes that whatever title he has is by virtue of the judgment and in paragraph 6 he denies there is title in the complainant. The issue must be settled at the hearing on the proofs.
"Paragraph 7 must stand. The motion is to strike it in its entirety. One statement in the paragraph holds it, viz., that the amount tendered is not proper portion. That issue must be settled at the hearing.
"Paragraph 8 will be stricken out. Unclean hands alleged is not for the defendant to raise, they are not unclean towards the defendant in respect to the relief sought. Neubeck v. Neubeck, 94 N.J. Eq. 167; Shotwell v. Stickle, 83 N.J. Eq. 188; Weidmann Silk Dyeing Co. v. East Jersey Water Co., 88 N.J. Eq. 397; affirmed, 89 N.J. Eq. 541; Mirkin v. Bowker, 133 Atl. Rep. 41; Costello v. Thomas Cusack Co., 96 N.J. Eq. 95.
"Paragraph 9 will stand. It is argumentative, but the motion to strike is not on that ground."
Mr. J.A. Kiernan, for the appellant.
Messrs. Whittemore McLean, for the respondents.
The order appealed from will be affirmed for the reasons stated in the memorandum filed by Vice-Chancellor Backes.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, JJ. 12.
For reversal — None.