104 N.Y.S. 787 | N.Y. App. Div. | 1907
The action is for libel in publishing certain articles derogatory to the plaintiff’s “ pink pills for pale people.” The 10th paragraph of the answer is a denial of the allegations not admitted. The 11th paragraph begins, “ The above-named' defendants further answer ing said complaint, and for a second further answer and defense allege,” and the 11th, 12th ' and 13th paragraphs are evidently intended as one answer and défense. This answer' alleges facts' which, if stated as a partial, defense, would be held relevant and proper for that purpose. But, not being stated as a partial defense, it must be deemed as intended for a complete' defense, and is, therefore, clearly demurrable for insufficiency. A separate answer, which is subject to demurrer, cannot be stricken out in its entirety as irrelevant of redundant under section 545 of the Code of Civil Procedure. (Goodman v. Robb, 41 Hun, 605; Armstrong v. Phillips, 60 id. 243; Walter v. Fowler, 85 N. Y. 621; Nich. N. Y. Pr. § 922.)
Where scandalous matter has been inserted in an answer solely to insult the plaintiff and not to protect the defendant, the plaintiff is not required to admit the scandalous allegations by demurrer, but such answer, although alleged as a separate defense, may be stricken out as scandalous. " The necessity of the case makes this exception to the rule. (Armstrong v. Phillips, supra; Persch v. Weideman, 106 App. Div. 553.)
Uggla v. Brokaw (77 App. Div. 310), decided by' a divided court, does not impair the authority of the above cases. There certain answers were demurred to for insufficiency, and the demurrers were overruled for the reason that the answers did not allege new matter, but merely recited allegations pertinent' to the issue, but which might be shown under the general denial, and were, there
The argument of counsel has been directed to sustaining or overthrowing the order as an eiitirety. The court does not, therefore, ' feel called upon to determine whether certain parts of the matter stricken out might properly be stricken out as irrelevant to the issuri attempted td be raised by the answer. The order appealed from is, therefore, reversed, with costs, and the motion'is'denied, with costs.
All concurred.
Order reversed, with ten dollars costs and disbursements* and' motion denied, with ten dollars costs»