Miller v. Florida East Coast Railway Co.

Motion to strike out certain words in the second defense of the admitted .answer, on the ground that the same is irrelevant and redundant, under section 545 of the Code of Civil Procedure. The facts alleged in the complaint are denied by the answer and. in addition thereto defendant sets up a separate defense “that the defendant duly performed all the conditions and covenants in said agreement contained (the agreement described in the complaint) on its part to be performed.” This defense, so set forth, should be stricken out. Rogers v. Morton, 46 Misc. Rep. 494; Stieffel v. Tolhurst, 55 App. Div. 532. In Blaut v. Blaut, 41 Misc. Rep. 572, the court held: “ Denials can be proven under the first nine paragraphs of the complaint, and their repetition does not strengthen the plaintiff’s pleading. They are not a necessary or proper part of the separate defenses. The very theory of an affirmative defense is that without denials of the allegations of the complaint the defendant can defeat the plaintiff by new matter pleaded. Besides, the plaintiff is aggrieved by the presence of these denials. A defense which contains a general denial is not demurrable, even though the matter pleaded does not constitute a defense.” In Rogers v. Morton, supra, the court held: “ If the plaintiff cannot with safety demur to a pleading containing an immaterial allegation or denial of fact, he has his remedy under the Code and should first move to strike out said allegation or denial.” In Stieffel v. Tolhurst, supra, the court held: “ETo part of a pleading will be stricken out as irrelevant or redundant unless the court can see that the moving party is aggrieved *75by it and that striking it out will do no harm to tbe pleader. In tbe case of redundant denials which seriously affected tbe moving party’s right to demur to an affirmative defense coupled witb them, tbe court considered that as the denials added nothing to tbe affirmative defense, and were already set up in tbe earlier portions of tbe answer, they should be stricken out.” State of South Dakota v. McChesney, 87 Hun, 293; Fletcher v. Jones, 64 id. 274. Tbe motion is, therefore; granted, witb leave to defendant to serve an amended answer on payment of ten dollars costs.

Motion granted.