Crotty v. Erie Railroad

The order in so far as it strikes out the first and separate defense and the second and separate defense as scandalous and irrelevant, and the third and separate defense as irrelevant, must be reversed, inasmuch as section 545 of the Code of Civil Procedure does not authorize the striking out of an entire cause of action or an entire defense, but only the matter thereof which is irrelevant, redundant or scandalous. (Tierney v. Helvetia-Swiss Fire Ins. Co., 129 App. Div. 694, and cases, cited; Gibson v. McDonald, 139 id. 51.) It follows that the order in so far as it denies the *903motion to strike out the fourth separate defense must be affirmed. The order is modified in aceordan ce with this opinion, and as modified is affirmed, with ten dollars costs and disbursements to the defendant, appellant. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred. Order modified in accordance with opinion, and as modified affirmed, with ten dollar's costs and disbursements to the defendant, appellant.