11 Abb. Pr. 435 | The Superior Court of New York City | 1860
The plaintiffs sue upon an acceptance, by the defendant, of a bill drawn by P. C. Kane in favor of Hrs. Edith Kane, and indorsed by her. The complaint states a due indorsement of the bill to the plaintiffs; a demand for payment, and refusal. There is another cause of action upon another bill, made and accepted under the like circumstances.
The answer sets up that P. C. Kane was the defendant’s debtor; that he accepted the bill for Kane’s accommodation, to enable him to raise money from the bank, upon the faith of Hrs. Kane having provided security for the payment by property or funds placed in the hands of the bank, to cover these and other similar drafts; that Hrs. Kane had made such a deposit of property with the bank; that the bank discounted the bill on receipt of such property; that both Kane and defendant were insolvent, and such facts were known to the bank; “ and that said bank discounted such acceptances entirely upon the faith and credit of the security so furnished by Hrs. Kane.” He asks, therefore, that the bank should first apply the securities so placed in their hands, before resorting to him on the acceptances.
Thus an acceptor of a bill of exchange is to be freed from liability, because the holder who discounted it had securities placed in his hands by the indorser, and is averred to have discounted the bill entirely on the faith and credit of such security. In other words, he would not have discounted it unless he had possessed such securities. There is not a word in this to show that they meant, much less agreed to discount it without having a right to resort to the acceptor. Proof of such an agreement would not be allowed. That the acceptance was an accommodation acceptance, is unimportant. The liability is the same as if it had been based on funds.
There is no equity whatever to compel the holder to suspend proceeding on this discounted acceptance, until he has exhaust
The only question raised which requires notice, is whether the motion to strike out was the appropriate remedy.
By section 152, sham and irrelevant defences maybe stricken out on motion.
I have always considered that irrelevancy in this, and section 160, meant the impertinence of the old chancery system. That was either prolixity or needless details of material matter, or something out of which no cause of action or defence could arise between the parties in the particular suit.
Cases of both classes are cited in 1 Hoffman’s Ch., 280, 282. Beaumont a. Beaumont (5 Mad., 51) is a striking case of an answer, setting forth the details of prices and particulars in an auctioneer’s catalogue, certainly not immaterial, but clearly superfluous. Corbet a. Tottenham (1 Ball & Beatty, 61) is an instance of the other class. Lord Manners said: “ I do not think the plaintiffs are bound either to reply to these charges in the defendant’s answer, or to go into evidence to disprove them, and therefore they ought not to remain on the record.”
'This distinction is adverted to in Bowman a. Sheldon (5 Sandf., 660). In various cases irrelevancy, under the Code, is treated as matter which does not tend to constitute a cause of action or defence; matter which, even if true, cannot affect the decision of the court in the case. (Stewart a. Bouton, 1 Gode B., JF. S., 404; Averill a. Taylor, lb., 213; Clark a. Harwood, 8 Mow. Pr., 470; Edgerton a. Smith, 3 JDuer, 614.)
Section 160 appears to relate to cases in which, in the same pleading, or in a distinct, separate part of a pleading, irrelevant matter is mingled with pertinent matter. Franklin a. Keeler (4 Paige, 382) furnishes an example of this.
But section 152 refers to an answer, or defence, which in its entirety is either sham or irrelevant. I read the section thus— That a sham answer or defence and an irrelevant answer or defence may be stricken out on motion.—The received definition of a sham answer is its falsity. It may be material and pertinent, and yet be stricken out as sham. (The People, &c., a. McCumber, 18 N. Y. (4 Smith), 315.) It need not, of course, be both sham and irrelevant.
Slack a. Cotton (2 E. D. Smith, 398) is an instance of a distinct defence being stricken out as sham, under section 152.
In Hecker a. Mitchell (5 Abbotts’ Pr., 453) there was a motion for judgment under section 247, on. the ground of the frivolousness of the answer. But there were two defences set up: one of which was, as pleaded, available; the other was frivolous. Mr. Justice Woodruff, while denying the motion as made for judgment, ordered the second defence to be stricken out, under the prayer for other relief.
The redress which a plaintiff can have, under section 247, by a judgment for frivolousness, can, of course, only be where every part of the answer is such.
The authorities referred to, seem to show that the ability of the plaintiff to demur (under section 153) to one or more of the defences set up in an answer, does not preclude a motion under section 152. A motion for judgment, under section 247, is a summary demurrer to an answer in cases in which a demurrer will lie; and so the motion to strike out part of an answer may be regarded as a summary demurrer to that part, and as giving a concurrent mode of relief.
Mr. Justice Harris, in Stewart a. Bouton (1 Code R., N. S., 404), says: “This motion, to strike out irrelevant matter, is analogous to a demurrer, and should be decided on the same principles. If matter cannot be made the subject of a material issue, it should be struck out.”
There are authorities to show that a demurrer will not lie to irrelevancy in a pleading. But it will be found that they are cases in which irrelevant matter has been united, in the statement of some substantive cause of action or defence, with material matter. Such was the case in Watson a. Husson (1 Duer, 242), and Welch a. Hazleton (14 How. Pr., 97). They do not, therefore, support the proposition that a demurrer would not lie in a case like the present, nor could such a proposition be sustained under the clear language of section 153. They leave
The order must be affirmed, with costs.