94 N.Y.S. 800 | N.Y. App. Div. | 1905
This is an action for criminal conversation. The plaintiff alleges that he' married Gretchen T. Persch on the 18th d'ay of January, 1904, and that they thereafter lived happily together until the 1st d’ay of July, 1904, when the; defendant, well knowing her to be the plaintiff's, wife, willfully and maliciously, and with intent to injure the plaintiff, alienated the affections of his_ wife and established and subsequently continued intimate; relations with her. Certain parts of .the answer set forth facts which, if established, will • constitute a complete defense to the answer, and other parts set forth facts: which, if established, would go ih mitigation of damages only.' It is inanifest that facts which constitute a defense may not be stricken out as scandalous; but, on the other hand, facts pleaded as a complete defense, which' would be demurrable as constituting only a partial defetise or as being ¡at most in mitigation of damages; may be stricken out as scandalous upon the theory that' the party . aggrieved thereby should not be ¡required to admit the truth of the allegations by demurring thereto. (Armstrong v. Phillips; 60 Hun, 243.) .
The allegations of the 1st paragraph of the third and separate defense, if properly pleaded, might be proved in mitigation of damages, but being scandalous and not so pleaded, should be stricken out. The allegations of the 2d paragraph, of the third separate defense and answer are.redundant in so far as they allege that there were no improper relations between the defendant and the plaintiff’s wife, for this might have been proved under the general denial; but they constitute a defense to all that occurred between the ■defendant and the plaintiff’s wife in so far as they allege that the plaintiff did everything in his power to bring about improper relations between them, and, therefore, should not have been stricken out. The allegations of the 3d paragraph of the third and separate defense do not constitute a defense in whole or in part, and none of them are relevant to the issues. They merely relate to the plaintiff’s motive in bringing the action.' The allegations of the 4th and last paragraph of the third and separate defense are all scandalous and do not constitute a defense, but' might be shown in
Since the entire pleading is not scandalous it cannot very well he-stricken from the files, if it be on file, and the order should have-provided for expunging the matter stricken out. Nor should the defendant be required to surrender the original -answer to the attorney for the plaintiff for cancellation or to serve, an amended pleading.
It follows, therefore, that the order should be modified by striking out only the irrelevant, redundant and scandalous matter which is hot a complete defense as herein indicated,, and by requiring the-clerk tó expunge the same if the pleading be on file, and as thus modified affirmed, without costs.
O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ.,. concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.