Opinion
July, 1905.
Charles Newton, for the appellant.
David Welch, for the respondent.
This is an action for criminal conversation. The plaintiff alleges that he married Gretchen T. Persch on the 18th day of January, 1904, and that they thereafter lived happily together until the 1st day of July, 1904, when the defendant, well knowing her to be the plaintiff's wife, willfully and maliciously, and with intent to injure the plaintiff, alienated the affections of his wife and established and subsequently continued intimate relations with her. Certain parts of the answer set forth facts which, if established, will constitute a complete defense to the answer, and other parts set forth facts which, if established, would go in mitigation of damages only. It is manifest that facts which constitute a defense may not be stricken out as scandalous; but, on the other hand, facts pleaded as a complete defense, which would be demurrable as constituting only a partial defense or as being at most in mitigation of damages, may be stricken out as scandalous upon the theory that the party aggrieved thereby should not be required to admit the truth of the allegations by demurring thereto. ( Armstrong v. Phillips, 60 Hun, 243.)
In the answer and defense numbered second, the defendant alleges as a complete defense matters that might be proved in mitigation of damages, but which do not constitute a defense, and, being scandalous, should be stricken out. This embraces all of that defense down to the allegation that the plaintiff introduced his wife to the defendant, who was at that time a stockholder and officer of the German-American Brewing Company, upon the stock of which company the plaintiff was endeavoring to secure an option. The allegation of such introduction together with the allegations immediately following tend to show that the plaintiff aided and connived at bringing about the relations, such as they were, that existed between the defendant and the plaintiff's wife, which would constitute a defense, and, therefore, may not be stricken out. It is evident that an action of this character will not lie where the husband is responsible for the relations existing between his wife and the defendant. The last sentence of that defense is redundant in so far as it alleges that the defendant refused to be influenced by the plaintiff in establishing intimate relations with the latter's wife, for this was provable under the general denial, and the remainder is irrelevant, for it merely alleges the plaintiff's motive in bringing the suit The entire sentence was, therefore, properly stricken out.
The allegations of the 1st paragraph of the third and separate defense, if properly pleaded, might be proved in mitigation of damages, but being scandalous and not so pleaded, should be stricken out. The allegations of the 2d paragraph of the third separate defense and answer are redundant in so far as they allege that there were no improper relations between the defendant and the plaintiff's wife, for this might have been proved under the general denial; but they constitute a defense to all that occurred between the defendant and the plaintiff's wife in so far as they allege that the plaintiff did everything in his power to bring about improper relations between them, and, therefore, should not have been stricken out. The allegations of the 3d paragraph of the third and separate defense do not constitute a defense in whole or in part, and none of them are relevant to the issues. They merely relate to the plaintiff's motive in bringing the action. The allegations of the 4th and last paragraph of the third and separate defense are all scandalous and do not constitute a defense, but might be shown in mitigation of damages if properly pleaded, and they also were, therefore, properly stricken out.
Since the entire pleading is not scandalous it cannot very well be stricken from the files, if it be on file, and the order should have provided for expunging the matter stricken out. Nor should the defendant be required to surrender the original answer to the attorney for the plaintiff for cancellation or to serve an amended pleading.
It follows, therefore, that the order should be modified by striking out only the irrelevant, redundant and scandalous matter which is not a complete defense as herein indicated, and by requiring the clerk to expunge the same if the pleading be on file, and as thus modified affirmed, without costs.
O'BRIEN, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.