Nordlinger v. McKim

The action is brought to recover money alleged to have been received by the defendants on checks owned by the plaintiffs, and collected by means of the fraudulent and forged indorsement of their names upon them. The defendants, by their answer, have denied the material allegations of the complaint, and to their denials have added other allegations which were included in the motion. These allegations aver that the indorsements were made by a person in the plaintiffs’ employment, whom they retained after they became aware that he was unreliable and untrustworthy, and that it was attributable to their own conduct that he was able to make use of the checks, and allow the money to be collected upon them. These statements, it is true, have been unnecessarily, and, it may be added, improperly, elaborated, extended, and repeated, but they are nevertheless relevant to the issue, and created material inquiries to be settled by the trial. And so far they cannot be stricken out, either as sham or irrelevant, under sections 538 and 545 of the Code of Civil Procedure. It certainly cannot be said that they do not present the semblance of a defense, although they have been needlessly repeated, and, where that cannot be held, they cannot be stricken out. Walter v. Fowler, 85 N. Y. 621. They might, without detriment to the defendants, be very much reduced in bulk, but that it is not the office of the general term to do. On the contrary, it is the practice not to interfere, unless it is plain that the party complaining will be prejudiced in his case by allowing the pleading to remain uncorrected. Lugar v. Byrnes, 1 N. Y. Supp. 262. And that the plaintiffs will be so prejudiced by these extended and minute statements does not appear. If the third, fourth, and fifth subdivisions of the answer present no defense, the regular mode for contesting them is by the service of a demurrer, and not by way of this motion. But that probably could not be maintained, for there are facts in each division alleged which, if proven, may prevent the plaintiffs from succeeding in the action. The sixth subdivision of the answer rests upon the conduct of the plaintiffs after their alleged discovery of the misconduct of their book-keeper and cashier, by which it is averred that the defendants have been deprived of their right to resort to him for indemnity in case of loss accruing to them by reason of his acts, and by which they obtained satisfaction for the loss they encountered through his misconduct. It cannot be now held that this part of the answer discloses no defense, although much more has been stated than was requisite for this purpose. That is the entire fault of the answer; for while facts are alleged that are material and necessary to the defense, far too much has been said to color and comment upon them, to be consistent with the clearness and conciseness of pleadings in legal actions. At the same time the plaintiffs have been deprived of none of their rights by this unjustifiable waste of words. The order should be affirmed, but without costs to the respondents.