Carpenter & Wilcox v. West & Van Benthuysen

Hand, Justice. “If irrelevant or redundant matter be inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby” (Code, § 160). If this clause does not include scandalous and impertinent matter, it contains no prohibition, and they may still be struck out of a pleading. The old practice in this respect yet exists (Code, 469; Rule 92). It would be monstrous if there were no mode of purifying the record by expunging scandalous matter. It can not be done by demurrer (1 Dan. Practice, 401; Code, § 144). By “irrelevant or redundant” in the Code, I take it is meant, what is usually understood as impertinent; for a pleading in equity is impertinent, [56] when it is stuffed with long recitals, or long digressions, which are altogether unnecessary and totally immaterial to the matter in hand (Hoff. Master 317; 1 Dan. Pr. 399; 1 Barb. Pr. 41; Woods v. Morrell, 1 J. C. R. 106; Story Eq. Pl. § 266). It is like surplusage at law. According to Webster, redundant means superfluous, more than is necessary, superabundant; and irrelevant, not applicable or pertinent, not serving to support. Both, therefore, may probably come under the head of impertinent. Prolixity may become redundance, and Lord Eldon held, that needless prolixity was in itself impertinence (See the cases 1 Dan. Pr. 400), It has been thought irrelevant and redundant matter should not be struck out unless a party is aggrieved or prejudiced thereby (White v. Kidd, 4 How. Pr. R., 68; Hynds v. Griswold, id. 69). With deference, I doubt that this is so to the fullest extent. As to scandalous matter, it is not clear that a person not a party to the record may not move to strike it out (Coffin v. Cooper, 6 Ves. 514; Williams v. Douglass, 5 Bear. 82; ex parte Simpson, 15 Ves. 477; 5 id. 656, note). And the court, it seems, will do it without application of any one (Ex parte Simpson, supra). And impertinence in an answer was always exceptionable. My own impressions are, that as to scandalous and impertinent, irrelevant and redundant matter, the Code has not in any respect changed the former practice in equity cases (see Shaw vs. Jayne, 4 How. Pr. R. 119; Knowles vs. Gee, id. 317). Its effect on what, before the Code, would have been cases at law, is not now under consideration. If this view is correct, the adverse party may always be considered aggrieved by scandalous, irrelevant, impertinent and redundant matter in a pleading. I think one may be considered aggrieved by the interpolation of matter into the pleadings in a cause, in which he is party, foreign to the case; and he always had a right to have the record expurgated for that reason without reference to the question of costs. If relevant, it can not be scandalous (Ld. St. John v. Lady St. John, 11 Ves. 526; Stor. Pl. 269). And a few unnecessary words will not make a pleading impertinent (Del Pont v. De Tastel, 1 [57] Tur. & Russ. 486; Des Places v. Goris, 1 Edw. & C. R. 350). And courts should be liberal, especially until our novel system of pleading shall have become better settled and understood. Every fact, direct or collateral, tending to sustain the general allegations of the bill, may be inserted, if done in a proper manner (Hawley vs. Wolverton, 5 Paige, 522; Perry vs. Perry, 1 Barb. C. R. 519). And in Delpont v. De Tastel (supra), which, however, goes to the extent of the rule, extracts from letters of the defendant were permitted for the purpose of eliciting answers as to those letters. But the principal case is very different. Here, portions of two affidavits, probably extrajudicial, by persons not parties to the suit, are inserted, neither of which amount to more than the mere statements of third persons, and are in no sense papers or transactions between the parties, and can not be given in evidence, nor their existence or validity be put in issue between them. Chance'. cr Kent thought the best test by which to ascertain whether the matter be impertinent is, to try whether the subject of the allegation could be put in issue and would be matter proper to be given in evidence between the parties (Woods v. Morrell, 1 J. C. R. 106). The plaintiff might as well have inserted a letter from his own attorney, giving his recollection of the history of the case. The allegation that one or both of the defendants were guilty of forgery, and also the allegations of fraudulent and dishonest acts in obtaining the judgment, without specifying what those acts were, are still more exceptionable. The complaint alleges that when the plaintiff Carpenter, transferred the note against Huling to West, there was upon it an indorsement in pencil of $20; that, as he is informed and believes, West obtained judgment against Huling for the whole amount, without deducting the $20, and is also informed and believes that there was no trace of this indorsement on it at that time, and that Huling has paid the judgment; and that it was understood that when Huling paid what was due, deducting the indorsement, that completed the payment of Carpenter’s debt to West. If Carpenter sold the note [58] for a certain sum, as he alleges, and West afterwards recovered the whole amount, that seems to he a matter between him and Huling the payor. No liability of Carpenter therefor is suggested. This then is irrelevant. But the plaintiff Carpenter goes further, and expressly alleges and charges that West and Van Benthuysen “ some one or both of them, have been guilty of the crime of forgery in crossing or obliterating “ the endorsement, and that it was done to cheat and defraud the plaintiffs. -As to Van Benthuysen, this seems to be the only connection he has had with the note; for it does not appear that he ever heard of it before. As to West, the charge, if true, is wholly irrelevant, and not issuable in this cause, and bears cruelly upon his moral character, and is therefore scandalous; more so I think than in case of Simpson ex parte (supra), and Somers v. Torrey (5 Paige, 54), where the matter was expunged with evident marks of reprobation. The general charge of their dishonest and fraudulent acts to obtaining the judment, is also not issuable and is scandalous. The motion must be granted with costs.