Tierney v. Helvetia Swiss Fire Insurance

Section 545 of the Code of Civil Procedure authorizes the striking out of “irrelevant, redundant, or scandalous matter; contained in a pleading.” That section does not authorize the striking out of an entire cause of action or defense, but only of irrelevant, redundant, or scandalous matter contained therein. The sufficiency of the matter pleaded as a defense cannot thus be tested. An entire defense, though insufficient, cannot be stricken out as irrelevant. Hanson v. Collier, 119 App. Div. 794, 104 N. Y. Supp. 787; Cardeza v. Osborn, 33 Mise. Rep. 46, 65 N. Y. Supp. 450, affirmed 54 App. Div. 636, 66 N. Y. Supp. 1138; Stroock Plush Co. v. Talcott (Sup.) 113 N. Y. Supp. 314.

It is conceded that the defendant offered no objection to the striking out of the eighth paragraph, but the appeal is taken from the entire order. It should, therefore, be modified, so as to provide that only the eighth paragraph of the answer be stricken out, and, as thus modified, affirmed, with costs of this appeal. All concur.