5 How. Pr. 53 | N.Y. Sup. Ct. | 1850
“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,
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
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
The motion must be granted with costs.
