Witherbee v. Slayback

The matter stricken out adds nothing to the completeness of the statement of the defense set up in the answer. It appears to be a recital of evidence tending to establish that defense.

It is urged, however, that, in a certain aspect of the case, the matter stricken out might constitute a defense separate from the one pleaded. It may be the suggestion of a possible defense, but is not a defense well pleaded. As it now stands, it is matter irrelevantly and improperly annexed to a defense.

We affirm the order with costs, with leave to the defendants to amend their answer as to such suggested defense, within twenty days from the service of a copy of the order upon them, if they be so advised, but without change of date of issue.

Learned, P. J., and Ingalls, J., concur.