majority">By the Court.*—Bosworth, C. J.

Appeal by the defend*262ants from an order, dated October 1, 1863, striking out the defences marked third and fourth as irrelevant and frivolous.

There is no provision in the Code authorizing a defence to be stricken out as frivolous. Sham and irrelevant answers and defences may be stricken out. (Code, § 152.) A plaintiff may demur to an answer containing new matter, where, upon its face, it does not constitute a counter-claim or defence; and á plaintiff may demur to one or more of such defences. (Ib., § 153.) If an answer be frivolous, the plaintiff may move for judgment on that ground. (Ib., § 247.) If the motion be granted, the answer is not stricken out, but remains on the record. (Briggs a. Bergen, 23 N. Y., 162.)

The order can be upheld, if these defences are irrelevant, but not otherwise. A defence is irrevelant which has no substantial relation to the controversy between the parties to the action. Kurtz a. McGuire (5 Duer, 660) is an illustration.

The allegations constituting the defence marked fourth, even if true, have no substantial relation to the controversy between the parties. They do not tend to show any averment of the complaint to be untrue, nor present any ground for denying to plaintiff a recovery of the whole amount claimed. Any mere-notice that third persons may have- given to the defendant is wholly extraneous to the controversy, and is clearly irrelevant.

The allegations forming the third defence are pertinent to the controversy, unless their effect be avoided by facts not appearing on the record: they show, grima facie, that K. A. Cowdrey has acquired a lien on the amount due from the defendant to the plaintiff to the extent of the amount of his judgment. But until an order is made that the defendant pay such amount to Mr. Cowdrey, his right to receive it from the defendants is not absolute. The defendants and Carpenter are enjoined from making. “ any transfer, or any other disposition of, or interference with the property of said Carpenter,” assuming the order to be correctly described in the answer.

Whether this does or does not interfere with the plaintiff’s and defendants’ right to litigate the suit, and determine by verdict the extent of the defendants’ liability, need not be now decided. If an order to pay Cowdrey- shall then have been made and be in force when a verdict shall be rendered, it will protect and prohibit the defendants from paying gro tanto, to *263Carpenter. That there are not enough allegations to make a perfect partial defence, may render it demurrable, but does not make it irrelevant. The allegations are relevant or pertinent, but insufficient, perhaps, to constitute a defence. Whether they constitute a defence, must be determined upon a demurrer to this defence, or at the trial.

As to the suggestion that the facts constituting this defence arose since suit brought, and can only be set up in a supplemental answer on leave of the court first had; it may be replied, that no answer had been put in prior to the one in question. There is no answer to which a supplemental one can be made. The defence is none the less relevant, even if it be true that the answer is irregular, because put in without leave of the court. All that can be said in that view of the law is, that the answer was interposed irregularly, but not that the matter in it is, for that reason, irrelevant.

There is another answer to the suggestion. In actions at law, prior to the Code, a defendant could plead, as a matter of course and of right, any defence arising after suit brought, and before the time to plead had expired. But instead of being plead in bar, it was plead to the further maintenance of the suit. (Covell a. Weston, 20 Johns., 414; Boyd a. Weeks, 2 Den., 321-322; 2 Chitty Pl., 906, 913.) This, however, was a matter of form, rather than of substance. If true and sufficient, it prevented a recovery by the plaintiff.

The same rule obtained in the Court of Chancery. A defendant could state in his answer matter arising before it was put in, and after suit brought. (Lyon a. Brooks, 2 Edw. Ch., 110.)

The question, in cases arising under the Code, was decided the same way by an able judge, in Willis a. Chipp (9 How. Pr., 568). No adverse decision has been cited. The defence could not be struck out as irrelevant, merely because it arose after suit brought.

It was discretionary with the judge to refuse to permit Markham to be substituted as plaintiff.

So much of the order as strikes out the thvrd defence as irrelevant, should be reversed; in other respects it should be affirmed, without costs to either party.

Present—Rosworth, Ch. J., White and Monell, JJ.

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