14 N.Y.S. 582 | N.Y. Sup. Ct. | 1891
Part of the “second” answer was scandalous, another part of it irrelevant, and the whole of it demurrable. Plaintiff’s motion to strike it out, in whole or in part, was denied, because—First, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served, but within due time, and having omitted therefrom the whole objectionable count, the subject-matter of the motion was no longer before the court, and the motion was superseded. Goodman v. Robb, 41 Hun, 605, is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith, to protect the party’s supposed rights. The scandalous matter here was obviously inserted, not to'protect the defendant, but to insult the plaintiff; and if the plaintiff had no remedy against it, except by demurring and thereby confessing the truth of the insulting matter, the defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb, ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. See Carpenter v. West, 5 How. Pr. 53; McVey v. Cantrell, 8 Hun, 522. The defendant had but 20 days in which to serve his amended answer as of course. Section 542, Code Civil Proc. He could not, by serving his original answer by mail, give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. Section 798, and Throop’s note. It follows that the amended answer was properly returned, and the motion
