6 How. Pr. 68 | N.Y. Sup. Ct. | 1851
Whether or not the route of the plaintiff’s road has been changed, so as not to conform- to the description contained in the articles of association, or whether, if the route has been so changed, it will exonerate the defendant from his liability to pay for the stock subscribed by him, are questions which may fairly be litigated; but with which, upon this motion, I have nothing to do.
As to that part of the answer which is the subject of this motion, I can not, after the most deliberate examination, discover any useful service that it can render the defendant. Conceding that any cause of action which the defendant might have in consequence of the agreement to convey the land required for the road according to its original location, and the actual conveyance in pursuance of such agreement, would be the proper subject of recoupment in this action (which probably is not the case), yet I am wholly at a loss to see how the facts alleged would constitute a cause of action, or entitle the defendant to recover damages of the plaintiff. Those facts would undoubtedly be sufficient to avoid the conveyance of the 8-Jr acres of land, if that should be claimed by the defendant. I will not say that those facts do not show the proceedings of the company in changing the route of their road, to be illegal and void; that is a question I need not
The motion to strike out redundant or irrelevant matter is analagous to a demurrer, and should, I think, be decided upon the same principles. If the matter can not be made the subject of a material issue, it has no business in the pleading, and ought. not to be left there, to embarrass the opposite party and the court (see Williams agt. Hayes, 5 How. 470). Mr. Justice Hand has, in Carpenter agt. West (5 How. 53), aptly compared this motion to exceptions for impertinence, under the former chancery practice. With a single exception, I think the analogy will hold. That exception has already been noticed in several cases. It is, that, under the chancery practice, matters of evidence might properly be inserted in a pleading, while they are excluded by the theory of pleading adopted in the Code. Any matter which, upon exceptions for impertinence, under the chancery practice, would be struck out as unnecessary and impertinent, should, upon motion, be struck out as redundant or irrelevant. I know of no better test than that I have already mentioned, which is, to inquire whether the matter objected to, can, in any way, be made the subject, or form a part of a material issue in the action. The application of this rule is fatal to the matter embraced in this motion. I am satisfied that it contains nothing, out of which any issue material to the subject matter of the action can be framed. The motion must, therefore, be granted, with costs.
