Opinion
May 24, 1907.
John T. Fenlon [ John V. Judge with him on the brief], for the appellants.
James A. Van Voast [ Edward W. Hatch with him on brief, Frank B. Church of counsel], for the respondent.
The action is for libel in publishing certain articles derogatory to the plaintiff's "pink pills for pale people." The 10th paragraph of the answer is a denial of the allegations not admitted. The 11th paragraph begins, "The above-named defendants further answering said complaint, and for a second further answer and defense allege," and the 11th, 12th and 13th paragraphs are evidently intended as one answer and defense. This answer alleges facts which, if stated as a partial defense, would be held relevant and proper for that purpose. But, not being stated as a partial defense, it must be deemed as intended for a complete defense, and is, therefore, clearly demurrable for insufficiency. A separate answer, which is subject to demurrer, cannot be stricken out in its entirety as irrelevant or redundant under section 545 of the Code of Civil Procedure. ( Goodman v. Robb, 41 Hun, 605; Armstrong v. Phillips, 60 id. 243; Walter v. Fowler, 85 N.Y. 621; Nich. N.Y. Pr. § 922.)
Where scandalous matter has been inserted in an answer solely to insult the plaintiff and not to protect the defendant, the plaintiff is not required to admit the scandalous allegations by demurrer, but such answer, although alleged as a separate defense, may be stricken out as scandalous. The necessity of the case makes this exception to the rule. ( Armstrong v. Phillips, supra; Persch v. Weideman, 106 App. Div. 553.)
Uggla v. Brokaw ( 77 App. Div. 310), decided by a divided court, does not impair the authority of the above cases. There certain answers were demurred to for insufficiency, and the demurrers were overruled for the reason that the answers did not allege new matter, but merely recited allegations pertinent to the issue, but which might be shown under the general denial, and were, therefore, redundant, and the court thought there should be a remedy by striking out the redundant matter. The question now under consideration was not squarely before the court. We cannot say whether the pleader intended the matter stricken out to be used by way of mitigation or justification. If properly alleged as a partial defense, it was clearly relevant in mitigation of damages. The pleader may have intended it as a justification. It is unnecessary upon this motion to determine whether the facts alleged are sufficient to constitute a justification or not. That matter should be determined upon demurrer, or in a proper way upon the trial. If demurrer is resorted to, and the defendant fails to sustain the answer, he may be allowed to amend and allege the matter as a partial defense, or to amplify it so as to make it a justification. Much of the matter stricken out would be proper in a plea of justification, and the answer may be said to foreshadow an attempt to make that plea as well as a plea of matter in mitigation. If the question is raised upon the trial the court may allow the defendants to amplify and correct the allegations so as to allege in form what they have attempted to allege in substance. The matter alleged relates to the charge made against the defendants, and is material to be shown to protect their rights. Whether it is alleged in form and substance sufficient to form a defense cannot be determined by motion, but may properly be considered upon a demurrer. A motion to strike out an answer as irrelevant is not concurrent with the right to demur for insufficiency or the right to question the sufficiency of the pleading at the trial. ( Walter v. Fowler, supra.)
The argument of counsel has been directed to sustaining or over-throwing the order as an entirety. The court does not, therefore, feel called upon to determine whether certain parts of the matter stricken out might properly be stricken out as irrelevant to the issue attempted to be raised by the answer. The order appealed from is, therefore, reversed, with costs, and the motion is denied, with costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.