269 A.D. 961 | N.Y. App. Div. | 1945
In an action to recover damages for libel, plaintiff moved, inter alia, to strike out the entire first and second defenses contained in defendants’ answer or, in the alternative, to strike out certain allegations contained therein and also to extend his time to make such motion. The Special Term denied plaintiff’s motion to extend his time and denied the motion to strike out, not on the merits, but solely on the ground that the motion was not timely made. In our opinion it was an improper exercise of discretion to deny plaintiff’s application to extend his time to make the motion. (Fiorello v. N. Y. Prot. Episcopal City Mission Society, 217 App. Div. 510; 11 Carmody on New York Pleading and Practice, § 872.) Motions to strike out parts of a pleading as improper are addressed to the sound discretion of the court (Dodge v. Campbell, 223 App. Div. 471), are not favored, and will be denied unless the court can see that the allegations have no possible bearing on the subject matter of the litigation. (Goodrow v. New York American, Inc., 233 App. Div. 37, 40; Nasmie Construction Co. v. Quasman, 215 App. Div. 724; Indelli v. Lesster, 130 App. Div. 548.) Therefore, considering the motion to strike out on the merits, we cannot say that the allegations of which plaintiff complains do not have a direct bearing on the subject matter of the action, and that evidence of the facts pleaded therein would not be admissible on the trial. Moreover the plea of truth contained in the first defense of qualified privilege was inserted by defendants to meet the criticism of this court in striking out a similar defense on a prior appeal. (Zirn v. Bradley, 268 App. Div. 1063.) Resettled order modified on the law by striking from the first ordering paragraph the word “ denied ” and substituting in place thereof the word “granted”; and by striking from the second ordering paragraph the words “solely on the ground that the motion for such relief was not timely made”. As so modified the order, insofar as appealed from, is affirmed, without costs. Close, P, J., Carswell, Johnston, Adel and Lewis, JJ,, concur.
