¶1Three modes are provided in the code by which a *69plaintiff may get rid of matters improperly inserted by the defendant in his answer. If it be clear that the answer contains no defence to the action, the plaintiff, under the 247th section, may, at once, apply for judgment, on the ground that the answer is frivolous. If several defences are set up in the answer, of which some do, and others do not, constitute a good defence, the plaintiff may, under the 153d section, put in issue the truth of such defences as he deems sufficient if sustained by proof, and, by demurrer, deny the sufficiency of the other defences, even if true. Again, if, in stating a defence, irrelevant or redundant matter be inserted with that which is material, so that it can not be reached by a demurrer, the 160th section provides that it may be stricken out, upon motion, when the plaintiff would be prejudiced by suffering it to remain in the answer. This is the chief, if not the only object of the authority given in the first clause of the section last mentioned. I do not say that a case might not be presented where several defences might be set up, one of which should be so utterly frivolous as to justify an application to strike it out, without putting the plaintiff to his demurrer. But, ordinarily^ when one good ground of defence is contained in the answer, so that the plaintiff can not apply for judgment on the ground that the whole answer is frivolous, I think the true mode of determining whether any particular defence is sufficient should be by the demurrer. The true office of the motion authorized by the 160th section, is to reach matter improperly inserted in a pleading and which can not be reached by a demurrer. Without deciding, therefore, whether the allegations in the answer sought to be stricken out, do or do not constitute a defence, I think the motion thould be denied. The plaintiff may have ten days further time to demur or reply, if he shall elect so to do. Neither party should have costs upon this motion.'
4 How. Pr. 68
White v. Kidd
Decided August 7, 1849
New York Supreme Court · decided 1849-08-07
—This was a motion to strike out a part of the defendant’s answer, upon the ground that it is irrelevant and redundant. The action is brought upon two checks upon the Mechanics’ and Farmers’ Bank, alleged to have been made and delivered by'the defendant to the Canal Bank, one on the 5th of October, 1844, and the other on the 13th of October, 1845.
Cited by 1 later decisions — most recently July 1867
1 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1849-08-07
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