absolutely false and sham; [state facts as thus] that the defendant has never paid, or in any way satisfied the demand set up in the complaint, nor any part thereof; nor has he ever paid, by himself or his agents, to the plaintiff, or to any of his agents, any part of the sum alleged by the said answer to have been paid. III. That the only person ever authorized by deponent to ask or receive money from the defendant is one M. Ñ., whose affidavit is hereto annexed; and that, to the best of deponent's knowledge and belief, no other person ever asked or received anything from the defendant for account of this deponent. [Jurat.] [Signature.] [Affidavits in corroboration should be annexed.]21 FORM No. 1092. Notice of motion to strike out a sham answer or defense.22 [Move the court, as in Form 815, p. 1171, of this volume, substituting for the italic matter between the ‡ and the ¶, as follows:] striking out the answer herein as sham [or as thus: the first defense in the answer herein as sham-and if, only part being struck out, the remainder is frivolous, may say: and for judgment on the answer as frivolous].23 [May add: And if such relief be denied, that the said defense in said answer be made more definite and certain as to - specifying what.] 21 Under the latest authorities, it is practically useless to make this motion unless facts can be shown (outside of the falsity of the defendant's affirmative allegations, as shown by the oath of the plaintiff and the supporting affidavits) which raise a presumption that the answer is a mere pretext. The merits of the defense alone, and the mere preponderance of plaintiff's proofs on the motion, will not be considered determinative. 22 This motion should be made to the court. N. Y. Code Civ. Pro., 538; Larco v. Casaneuva, 30 Cal. 560. It may be made any time before trial. Barker v. Foster, 29 Minn. 166. And even though the plaintiff has obtained time to reply. Miln v. Vose, 4 Sandf. 660. Delay, if it is not unreasonable, and does not appear to have prejudiced the defendant, is not ground for denying the motion. Tibballs v. Selfridge, 12 How. Pr. 64. 23 It is common practice to include in an order striking out the whole answer as sham, a direction for judg ment. Whether this is proper, or whether the plaintiff should be left to apply to the clerk, or to move on notice, as the case may require, for judgment for failure to answer, compare Fuller v. Claflin, 93 U. S. 14; Kreitz v. Frost, 5 Abb. Pr. (N. S.) 277; People v. McCumber, 18 N. Y. 315; Potter v. Carreras, 4 Robt. 629; Lefferts v. Snediker, 1 Abb. Pr. 41; Tharin v. Seabrook, 6 S. C. 113; De Forest v. Baker, 1 Abb. Pr. (N. S.) 34, 1 Robt. 700. FORM No. 1093. Order striking out sham answer or defense. [Caption (court order) and recitals, according to the case; see Form 820, p. 1174, of this volume.] ORDERED, that the answer24 of the defendant Y. Z. in this action be stricken out25 as sham [or if the motion be to strike out one defense as sham, and for judgment on another as frivolous:26 that the first defense be stricken out as sham, and that the plaintiff have judgment on the second defense as frivolous], with dollars costs of this motion. Enter: [signature of judge by initials of name and title.] III. IRRELEVANT, REDUNDANT, AND SCANDALOUS MATTER.27 FORM No. 1094. Notice of motion to strike out irrelevant, redundant, or scandalous matter.28 [As in Form 815, p. 1171, of this volume, substituting for the italic matter between the the foilowing:] striking out and A motion to strike out as sham may be joined with a demand for judgment for frivolousness of the answer. People v. McCumber, 18 N. Y. 315 (see supra). Or, in the alternative, to make more definite and certain. Sherman v. Boehm, 15 Abb. N. C. 254. A motion to strike out a defense as sham may be joined with a demand for judgment for frivolousness of another defense. Kay v. Whittaker, 44 N. Y. 565. And in such a case it is best to state which portions are objected to as sham and which frivolous. Bailey v. Lane, 13 Abb. Pr. 354, 21 How. Pr. 475. See, also, Jarvis v. McBride, 18 Wis. 316. As to what relief will be granted under the prayer for general relief, see volume I, pp. 151, 152, and Fellows v. Muller, 38 N. Y. Super. Ct. 137. 24 Part of an entire answer, or part of a separate defense, cannot be struck out as sham. Smith v. Am. Turquoise Co., 28 N. Y. Supp. 329; Winslow v. Ferguson, 1 Lans. 436; Collins v. Coggill, 7 Robt. 81; Bell v. Ogden, 13 Abb. Pr. 93, note. 25 A sham answer, or defense, is ordered stricken out. If the answer is frivolous, the order should not be that it be struck out, but that it be overruled, and plaintiff have judg ment. Howe v. Elwell, 57 App. Div. 357, 67 N. Y. Supp. 1108, 9 Anno. Cas. 166; Reese v. Walworth, 61 App. Div. 64, 69 N. Y. Supp. 1115. It is not usual to give leave to answer anew. 26 If anything of the answer is left, an order granting judgment absolutely in favor of the plaintiff would be improper. Strong v. Sproul, 53 N. Y. 497. See, also, note to last Form. 27 This motion is not to be used as a substitute for a demurrer, or trial of an issue, and the court will not determine upon the motion the sufficiency of the allegations as matter of defense. See Rankin v. Bush, 108 App. Div. 294, 95 N. Y. Supp. 719. 28 Directions as in note 10 to Form No. 1088. Siriani v. Deutsch, 12 Misc. 213, 34 N. Y. Supp. 26. Move before issue joined. Gen. Rule No. 22. Failure to return motion papers is not a [designate what,29 as thus:] all of the third paragraph30 of the complaint [or, answer] herein, and so much of the fifth paragraph as follows the words [quote a few preceding words], and waiver of the objection that the motion was not made in time. Gibson v. Gibson, 68 Hun, 381, 22 N. Y. Supp. 813. It is the better practice to state also the condition of the cause so as to show that the motion is in time; but it is held that this is not essential. for objection to delay is matter of opposition. Barber v. Bennett, 4 Sandf. 705; Roosa t. Saugerties, etc., Co.. 8 How. Pr. 237. Under the present practice the court, in the exercise of its discretion, usually denies the motion unless it appears that the irrelevant matter aggrieves or embarrasses the moving party; for clear irrelevancy or redundancy is regarded as presumptively harmless. Rockwell v. Day, 84 App. Div. 437, 82 N. Y. Supp. 993; Bogardus r. Met. St. Ry. Co., 62 App. Div. 376. 70 N. Y. Supp. 1094; Dinkelspeil r. N. Y. Eve. Journal Pub. Co., 91 App. Div. 96, 86 N. Y. Supp. 375. The aggrieved person need not be a party. Wehle v. Loewy, 2 Misc. 345, 21 N. Y. Supp. 1027. Therefore, if the matter is not scandalous, nor on its face embarrassing, facts showing how the moving party is embarrassed should be stated in an affidavit. Allegations following the pleadable facts and which merely set out the evidence, are properly stricken out. Bankers' Surety Co. v. Rothschild, 111 App. Div. 130. But allegations need not be struck out if their sole fault is the pleading of evidence. Vogt v. Vogt, 86 App. Div. 437, 83 N. Y. Supp. 677. Mere reiteration, which is harmless, will not justify granting the motion. Pope Mfg. Co. v. Rubber Goods Mfg. Co., 100 App. Div. 349, 91 N. Y. Supp. 828. Denials which are unnecessarily reincorporated in affirmative defenses will be stricken out as redundant, since their presence will prevent plaintiff from demurring. Dinkel speil r. N. Y. Eve. Journal Pub. Co., 91 App. Div. 96, 86 N. Y. Supp. 375; Stieffel v. Tolhurst, 55 App. Div. 532, 67 N. Y. Supp. 274, 8 Anno. Cas. 453. 29 The notice must specify the precise parts which are to be stricken out. Blake v. Eldred, 18 How. Pr. 240; Benedict v. Dake, 6 id. 352; Bryant v. Bryant, 2 Robt. 612; People v. Empire, etc., Mining Co., 33 Cal. 171; Pearce v. McIntyre, 29 Mo. 423; Jackson v. Bowles, 67 id. 609; Robinson v. Rice, 20 Mo. 229 (holding that a designation of the objectionable matter by a reference to the line and page of the original pleading is not sufficient; see volume I, p. 63; O'Connor v. Koch, 56 Mo. 253. A counterclaim cannot be stricken out as irrelevant or redundant. Fetterich v. McKay, 47 N. Y. 426; Walter v. Fowler, 85 N. Y. 621; Harway . Mayor, 1 Hun, 628. An entire answer or defense cannot be stricken out as insufficient, as the remedy is by demurrer, or motion for judgment; but if containing unauthorized matter, or if redundant, it can be stricken out even where it embraces what is pleaded as a separate defense. Uggla . Brokaw, 77 App. Div. 310, 79 N. Y. Supp. 244, Noval v. Haug, 48 Misc. 198, 96 N. Y. Supp. 708; Colt v. Davis, 50 Hun, 366, 3 N. Y. Supp. 354, 16 Civ. Pro. 180. Separate allegations should not be struck out so as to leave what remains unintelligible, or consisting of admissions which are qualified by matter struck out. Collins v. Coggill, 7 Robt. 81; Day v. Day, 95 App. Div. 122, 88 N. Y. Supp. 504. Nor the prayer for relief. Averill v. Taylor, 5 How. Pr. 476; 1 Code R. (N. S.) 213. Allegations of special damage cannot be stricken out as irrelevant, where the result would necessarily be to determine plaintiff's right to recover therefor. Pavenstedt v. N. Y. Life Ins. Co., 103 App. Div. 36, 92 N. Y. Supp. 853. 30 If the motion relates only to a part of a cause of action or defense, indicate it distinctly and not merely by the folios. Vol. I, p. 63; Commonwealth v. Melugin, 4 Ky. L. Rep. 265. -- precedes the words [quote a few subsequent words], as irrelevant31 [or, redundant or, as irrelevant and redundant — or if the application be in whole or in part for scandalousness, substitute or add: as scandalous.]32 FORM No. 1095. Order striking out irrelevant, redundant, or scandalous matter from a pleading. [Caption (court order) and recitals, according to the case, as in Form 820, p. 1174, of this volume.] ORDERED, that so much of the matter33 contained in the paragraph of the [complaint] in this action as follows the words [quote a few preceding words], and precedes the words [quote a few subsquent words], in said paragraph, be stricken out as redundant [or, irrelevant or, redundant and irrelevant - or add or substitute: as scandalous]. [If the pleading is on file, and if the omission leaves the pleading sensible, may add direction to clerk, as in second paragraph of Form 33, Volume I, p. 23. Otherwise may direct amendment as thus:] That within days after the service of this order, and upon payment of the costs hereinafter mentioned, the [plaintiff] re-serve upon the [defendant] the said [complaint] herein, amended by the omission of the aforesaid matter stricken out as herein ordered, and thereupon the [defendant] shall have days in which to plead thereto [or make such application as he may be advised thereon34]. [If the matter be scandalous, may direct removal from files; see Volume I, p. 297, Forms 169, 170. For direction charging attorney with costs, see same forms.] 31 The ground of objection must be specified. Bowman . Sheldon, 5 Sandf. 657; Lucas t. Smith, 54 Ind. 530; Ricketts v. Dorrell, 59 id. 427. 32 See volume I, pp. 61, 62; N. Y. Code Civ. Pro., § 545; Hilton v. Carr, 40 App. Div. 490, 58 N. Y. Supp. 134; People ex rel. v. Murray, 23 Civ. Pro. R. 53; Armstrong v. Philips, 60 Hun, 243, 14 N. Y. Supp. 582, 20 Civ. Pro. 399: Lavois v. Clute, 37 N. Y. St. Rep. 859; Bowman v. Sheldon, 5 Sandf. 657 Opdyke v. Marble, 44 Barb. 64, 18 Abb. Pr. 266; aff'd, Id., 375. As to charging attorney with costs, see Cracknall v. Janson, L. R., 11 Ch. D. 1, 48 L. J. Ch. 168, 39 L. T. 31, IV. COMPELLING ELECTION. FORM No. 1096. Affidavit in support of motion to compel election.35 [Title of court and action.] [Venue.] Y. Z., being duly sworn, says: I. That he is the defendant herein [or state relation to cause, and means of knowledge.] II. That only one transaction of the nature mentioned in either of the supposed causes of action set up in the complaint ever occurred between said defendant and the plaintiff, and that the allegations in both of the said supposed causes of action relate in reality to one and the same transaction. [Jurat.] [Signature.] FORM No. 1097. Notice of motion to compel plaintiff to elect between several counts setting forth the same cause of action. [As in Form 815, p. 1171, of this volume, omitting clause in brackets after the t, and substituting for the italic matter between the and the the following:] requiring the plaintiff to elect between the first stated cause of action and the second stated cause 35 Since recognition of a plaintiff's right to state the same demand, in separate causes of action, whenever there is doubt as to the aspect in which he is entitled to relief (Mulligan r. Erie R. Co., 99 App. Div. 499, 91 N. Y. Supp. 60; Blank v. Hartshorn, 37 Hun, 101; Velie v. Newark City Ins. Co., 12 Abb. N. C. 309, 65 How. Pr. 1), this motion is rarely to be sustained. If, however, the plaintiff's complaint embraces two inconsistent theories or claims, a motion will lie to compel an election. See Tuthill v. Skidmore, 124 N. Y. 148, 155; Cassidy t. Daly, 11 Wkly. Dig. 222; Stokes v. Behrenes, 23 Misc. 442, 52 N. Y. Supp. 251. Motion to compel election between a count upon the common law liability for negligence and a count upon lia bility under the Employers' Liability Act, denied. Monigan v. Erie R. Co., 99 App. Div. 603, 91 N. Y. Supp. 657; S. P., Frieze v. Ala., etc., R. Co., 99 App. Div. 545, 91 N. Y. Supp. 81. See, also, Gowans v. Jobbins, 90 App. Div. 429, 86 N. Y. Supp. 312. Misjoinder of distinct causes of action is not ground for this motion (Woodman v. Davis, 32 Kans. 344, 4 Pac. Rep. 263), but the remedy is demurrer. An affidavit is unnecessary (Ford v. Mattice, 14 How. Pr. 91), except when the cause of action or defense is repeated in such manner that the pleading does not show upon its face that the two are really identical (Lackey r. Vanderbilt, 10 id. 155), or unless an order to show cause is asked (see p. 1172), or an extension or stay (see p. 1374). |