(170 App. Div. 61) PLYMOUTH GARAGE, Inc., v. SHANLY et al. (Supreme Court, Appellate Division, Fourth Department. November 17, 1915.) 1. PLEADING GRANTED. 355-MOTIONS TO STRIKE-IRRELEVANT MATTER WHEN Defendants gave bond to secure the return of replevied goods to plaintiff, if possession was adjudged to them, or if the action abated or was discontinued. The action was not adjudicated, but under an alleged oral stipulation judgment was delayed beyond the statutory time. The plaintiff sued on the bond alleging that the action had abated, and the obligation of the bond had accrued. The defendants answered, setting up the oral agreement upon which they, their principal, and the judge acted and relied, and alleging that plaintiff refused to execute the necessary written stipulation to authorize a decision to be made in accordance with its oral agreement. The answer was stricken as irrelevant and redundant. Held, that under Code Civ. Proc. § 545, providing that irrelevant, redundant, or scandalous matter contained in a pleading may be stricken out upon motion of the person aggrieved thereby, the defense pleaded could not be stricken, for where there is semblance of a defense its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant, but the proper way to test its validity is by demurrer or by motion on the trial. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1102–1110; Dec. Dig. 355.] 2. PLEADING 364-MOTIONS TO STRIKE-WHEN PERMISSIBLE. Averments in a pleading can be stricken out on motion because of irrelevancy only when the matter to be stricken is irrelevant to the cause of action or defense attempted to be stated in the pleading. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec. Dig. 364.] Kruse, P. J., dissenting. Appeal from Special Term, Monroe County. Action by the Plymouth Garage, Incorporated, against James B. Shanly and another. From an order striking out defendants' answer, they appeal. Reversed, and motion denied. Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ. Charles B. Bechtold, of Rochester, for appellants. PER CURIAM. This action is brought against the defendants as sureties upon an undertaking given in an action of replevin in the Municipal Court of the City of Rochester to recover possession of an automobile. In that action the Shafer-Decker Company was plaintiff, and the Plymouth Garage, Incorporated, (plaintiff here), and Joseph A. Garvel and Elmer E. Wyckoff were defendants. The condition of the undertaking is: "For the prosecution of the action; for the return of said chattels to the above-named defendants, if possession thereof is adjudged to them, or if the action abates or is discontinued before the said chattels are returned to said defendants." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The complaint here alleges that possession of the automobile was taken from plaintiff by virtue of the requisition issued in said replevin action and that the same has never been returned to plaintiff; that issue was joined in said action, and a trial had in said Municipal Court, but no decision was rendered by the judge, and said action abated, and plaintiff became entitled to a return of said automobile, on which plaintiff claimed a statutory lien for repairs and storage, the amount of which is not alleged; and that plaintiff had demanded the return of said automobile which was refused, to the damage of plaintiff in the sum of $500, for which sum judgment is demanded. [1] Defendants' answer admits the allegations of the complaint as to the commencement of the replevin action in the Municipal Court to recover said automobile; its replevy therein from plaintiff's possession, and that it has never been returned to plaintiff; denies knowledge or information sufficient to form a belief as to the allegation of plaintiff's incorporation, and by appropriate form of denial puts in issue all other allegations of the complaint. The answer then sets up as a "second separate answer and a complete defense" in substance and effect that said Municipal Court action has not abated by failure of the judge to render his decision within the statutory time, and that plaintiff is equitably estopped from claiming such abatement because of the extension or enlargement of the time for rendering such decision by agreement of the parties through their counsel, first by written stipulation, and later by oral agreement, upon which defendants and their principal and said judge acted and relied, and that said judge is ready to render his decision, but plaintiff refuses to execute the necessary written stipulation to authorize such decision to be now made in accordance with its oral agreement so to do. The answer does not raise the question as to the right of plaintiff alone to maintain the action without joining the other defendants in the Municipal Court action. Substantially the whole of this "second and separate" defense has been stricken out by the order appealed from as irrelevant and redundant. The sole ground upon which respondent seeks to sustain this order here is that this defense is insufficient in law upon its face, because the alleged oral agreement between counsel contravenes rule 11 of the General Rules of Practice, which requires such agreements to be in writing. We think the sufficiency of this separate defense cannot properly be tested by motion under section 545 of the Code to strike it out as irrelevant or redundant. There is at least the semblance of a defense pleaded, and there is nothing alleged which is irrelevant or redundant as regards the substance of the defense attempted to be set up. The rule is that where there is a semblance of a cause of action or defense set up in a pleading its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. The proper way to test its validity is by demurrer or by motion on the trial. Walter v. Fowler, 85 N. Y. 621; Arnold v. Arnold, 134 App. Div. 758, 119 N. Y. Supp. 451. [2] The power to strike out on motion averments in a pleading because of irrelevancy applies only to such matter as is irrele vant to the cause of action or defense attempted to be stated in the pleading. Hagerty v. Andrews, 94 N. Y. 195; Tierney v. HelvetiaSwiss Fire Ins. Co., 129 App. Div. 624, 114 N. Y. Supp. 139. All The order appealed from should be reversed, with $10 costs and disbursements, and plaintiff's motion denied, with $10 costs. concur, except KRUSE, P. J. (dissenting). If the motion had been denied at Special Term, I should vote to affirm, under the rule referred to in the prevailing opinion; but since the question has been passed upon at Special Term, and decided correctly, as I think, the order may as well stand. I am of the opinion that the City Court lost jurisdiction of the action in which the undertaking was given, and that thereupon the obligation thereon to return the property became effective. It seems clear to me that the new matter pleaded and stricken out does not constitute a defense. I therefore vote for affirmance. (170 App. Div. 172) STAFFORD v. STAFFORD et al. (Supreme Court, Appellate Division, Fourth Department. November 24, 1915.) DIVORCE 162-PROCEEDINGS-STAY ON APPLICATION OF CORESPONDENT VERIFICATION. Where, in a wife's action for divorce, the corespondent's application for stay of entry of interlocutory judgment in favor of the wife, until after the issues raised by the corespondent's proposed answer should be disposed of, was based solely upon her attorney's affidavit, and was not supported by her own affidavit denying the truth of the charges of the complaint, the stay was properly denied. [Ed. Note. For other cases, see Divorce, Cent. Dig. § 527; Dec. Dig. 162.] Kruse, P. J., and Lambert, J., dissenting. Appeal from Special Term, Erie County. Suit for divorce by Augusta C. Stafford against Frank B. Stafford, in which Kate Heins was named as corespondent. From an order denying the corespondent's application for a stay of entry of interlocutory judgment for a divorce in favor of the plaintiff against the defendant until after the issues raised by the answer to be interposed by the corespondent should be disposed of, and for an order striking the case from the calendar, the corespondent appeals. Order affirmed. See, also, 165 App. Div. 27, 150 N. Y. Supp. 212; 167 App. Div. 956, 152 N. Y. Supp. 1144; 154 N. Y. Supp. 1146. Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ. E. C. Schlenker, of Buffalo (Jay C. King, of Buffalo, of counsel), for appellant. Lafay C. Wilkie, of Buffalo (Clifford J. Chipman, of Buffalo, of counsel), for respondent Augusta C. Stafford. Falk, Phillips & Schlenker, of Buffalo, for respondent Frank B. Stafford. For other cases see same topic & KEY-NUMBER in all Kev-Numbered Digests & Indexes PER CURIAM. The action is for a divorce on the ground of adultery alleged to have been committed by the defendant with the corespondent, Kate Heins. The defendant interposed an answer denying the charges of adultery. The issues as to defendant's adultery were, pursuant to order of the court, tried by a jury, and were determined in favor of the plaintiff. Shortly after the jury's verdict was had, and before the plaintiff's application for interlocutory judgment was to be heard at Special Term, a notice of appearance in said action by the attorney for the corespondent and a demand of service of a copy of the complaint was served on plaintiff's attorney. No copy of the summons and complaint in said action had been theretofore served upon the corespondent. Corespondent's application, which was denied by the order appealed from, was based solely upon the affidavit of her attorney. It is therein alleged that he was authorized by her to appear for her and take such action as he deemed advisable, and that he thereupon served upon plaintiff's attorney a notice of appearance for her, and a demand that a copy of the summons and complaint be served upon him as such attorney. He further alleges that, after a copy of the summons and complaint shall have been served, "on behalf of said Kate Heins, at her request, he intends to serve an answer denying the allegations of the complaint in so far as they relate to the corespondent, Kate Heins.” Beyond the purpose of plaintiff's attorney, thus alleged, to interpose an answer at the request and in behalf of the corespondent, nothing appears in the affidavit upon which the motion is based tending in any way to controvert the allegations in the complaint as to the adultery of the defendant with the corespondent. The corespondent's application for a stay should at least have been supported by her affidavit, denying the truth of the charges of adultery made in the complaint. Having failed to do this, the stay was properly denied. We do not pass upon the question whether, if such affidavit had been presented, a stay might properly be granted, as in our view of the case that question is not now before us. Order affirmed, with $10 costs and disbursements but without prejudice to a new motion at Special Term upon proper papers for the relief sought by the present motion. KRUSE, P. J. (dissenting). Subdivision 2 of section 1757 of the Code of Civil Procedure permits a plaintiff or defendant to serve a copy of his pleading in an action to obtain a divorce on the ground of adultery upon the corespondent named therein, and provides that within 20 days after such service the corespondent may appear to defend such action so far as the issues affect such corespondent. It further provides: "If no such service be made, then at any time before the entry of judgment any corespondent named in any of the pleadings shall have the right, at any time before entry of judgment, to appear either in person or by attorney, in said action and demand of plaintiff's attorney a copy of the summons and complaint, which must be served within ten days thereafter, and he may ap pear to defend such action, so far as the issues affect such correspondent." The plaintiff proceeded with the trial without serving a copy of the complaint upon the corespondent, and the jury found by their verdict that the defendant had committed adultery with the corespondent as charged in the complaint, and the verdict rests solely upon that charge. After the trial, but before judgment, the corespondent appeared by attorney and demanded a copy of the summons and complaint; but plaintiff insisted that the corespondent was not entitled to defend the charge so made against her, because the trial had already taken place, and that judgment should be entered upon the verdict without giving the corespondent an opportunity to defend such charge. An application to stay the entry of interlocutory judgment until after the issue raised by the answer to be interposed by the corespondent was denied, and the corespondent appeals from that order. I am of the opinion that the corespondent has the right to serve her answer and defend the action, notwithstanding the trial has taken place, so far as the issue affects the corespondent. The statute seems to contemplate that the corespondent may, at any time before entry of judgment dissolving the marriage, come in and defend the action. Whether the judgment referred to in the statute means the interlocutory judgment or the final judgment need not be decided, because here not even the interlocutory judgment had been entered when the corespondent appeared and served her demand. While the courts have discussed the meaning of this subdivision (Boller v. Boller, 111 App. Div. 240, 97 N. Y. Supp. 609; Dicks v. Dicks, 155 App. Div. 418, 139 N. Y. Supp. 1068; Shaw v. Shaw, 156 App. Div. 379, 141 N. Y. Supp. 425; Howatt v. Howatt, 158 App. Div. 28, 142 N. Y. Supp. 908), and there are expressions in some of the opinions tending to sustain the construction contended for by the plaintiff, I think none of the decisions actually sustains that contention. The language of the statute seems plain, and gives to the corespondent, as I think, an absolute right to make her defense at any time before judgment, unless the summons and complaint is served upon the corespondent, in which case the corespondent must appear within 20 days after such service. It is true that no answer had been served on behalf of the corespondent at the time the application for a stay was made, nor does it appear that the plaintiff had complied with the corespondent's demand for a copy of the complaint. It does appear, however, by the affidavit of her attorney, that after a copy of the summons and complaint is served he intends on behalf of the corespondent to serve an answer denying the allegations of the complaint so far as they relate to the corespondent. I am of the opinion that under the circumstances the entry of the interlocutory judgment should be stayed, at least until the time for serving such an answer expires, and, if such an answer is served, then till the trial of the issues raised thereby. LAMBERT, J., concurs. |