| NY | Dec 4, 1883
The question attempted to be raised by the respondents in this proceeding was, whether, upon the facts stated in the complaint, they were properly made parties defendant in the action.
The objection went to the entire cause of action, as stated against them, and the necessary effect of a decision in their favor was to leave them in as parties to the action, but with nothing in the pleadings to indicate their connection with the subject-matter, except the allegations in the answer of their co-defendants George M. Nichols and Mary Jane, his wife, alleging the invalidity of their liens.
It may well be doubted, even if the order appealed from should be allowed to stand, whether the respondents have secured any exemption from their responsibility as defendants in the action. It is quite clear that under section 1543 of the Code of Civil Procedure, they would still be obliged to litigate with their co-defendants, the Nichols, the validity of their liens upon the premises sought to be partitioned, notwithstanding the allegations in the complaint relating to their interest in the premises had been struck out by order of the court.
But it is quite evident that the question as to whether a person has been properly made a party defendant in an action cannot be raised upon a motion to strike out the allegations in the complaint referring to his interest in such action. The Code authorizes the party aggrieved thereby to move to strike outirrelevant, redundant or scandalous matter contained in a pleading, but it is a new application of the privileges conferred by this provision to strike out a pleading because it does not state a good cause of action against the moving party.
Questions as to the sufficiency of a pleading in stating a cause of action or defense against a party, or as to his liability *199
upon a given state of facts, can properly be raised only by a demurrer to such pleading. When the pleading contains the semblance of a cause of action or defense its sufficiency cannot be determined upon a motion to strike it out as irrelevant or redundant. (Walter v. Fowler,
It cannot be claimed that the portions of the complaint which were struck out by the order appealed from were either scandalous or redundant; and it follows that if they are struck out at all it must be upon the ground that they are irrelevant. It would be confounding the remedies provided by the several sections of the Code, to hold that the motion to strike out matter from a pleading was applicable to a case where there was an absence of allegations of fact sufficient to constitute a cause of action or defense.
The power given to a court to expunge matter from a pleading, upon motion, for irrelevancy, refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading against the party moving to expunge, and does not enable a party to strike out allegations relating to himself because they are irrelevant to an alleged cause of action against some other party.
We are, therefore, of the opinion that this appeal does not bring up the question attempted to be raised, and which was argued before us, and that we cannot properly pass upon that point.
The orders of the General and Special Terms must, therefore, be reversed, with costs in both courts to the appellants.
All concur.
Orders reversed.