Costanzo v. Mackler

Although this motion to dismiss the defense as legally insufficient was made pursuant to rule 109, it was supported by defendant’s voluminous testimony given during his examination before trial, and it was decided on the basis of such testimony. Rule 109, however, permits a defense consisting of new matter to be stricken out as insufficient in law only “ where * * * the * * * defects appear on the face thereof ”; on a motion under this rule only the pleading may be examined to determine the sufficiency of the defense. It was improper, therefore, to grant the motion and to strike out the defense on the basis of the extraneous matter, to wit: defendant’s testimony adduced at his examination before trial. Beldoek, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.