Tierney v. Helvetia-Swiss Fire Insurance

Miller, J.: Section 545 of the Code of Civil Procedure authorizes the striking out of “irrelevant, redundant, or scandalous matter, contained in a pleading.” That section does not authorize the striking out of-an entire cause of action or defense, but only of irrelevant, redundant or scandalous matter contained therein! The sufficiency of the matter pleaded as a defense cannot thus be tested. An entire [695] defense, though insufficient, cannot be stricken out as irrelevant. (Hanson Co. v. Collier, 119 App. Div. 794; Cardeza v. Osborn, 32 Misc. Rep. 46; affd., 54 App. Div. 626; Stroock Plush Co. v. Talcott, 129 id. 14.) It is conceded that the defendant offered no objection to the striking out of the 8tli paragraph, but the appeal is taken from the entire order. It should, therefore, be modified so as to provide that only the 8th paragraph of the answer be stricken out, and as thus modified affirmed, with costs of this appeal. Jenks, Hooker, Gaynor and ¡Rich, JJ., concurred. Order modified in accordance with the opinion, and as modified affirmed, with ten dollars costs and disbursements.