Cardeza v. Osborn

32 Misc. 46, 65 N.Y.S. 450

Opinion

Gaynor, J.:

This motion is made under section 545 of the Code of Civil Procedure to strike out as “ irrelevant ” matter pleaded as a “ defence The matter designated constitutes all of the matter so pleaded except a small part of it which if left alone could be to no purpose whatever. Why it is not included in the motion does not appear. The motion must therefore be deemed one to strike out the so-called defence in its entirety. Such a motion cannot be made, even though the matter does not constitute any defence, as seems to be the case here. The Code provision for the striking out of irrelevant matter obviously does not contemplate the striking out of an entire cause of action or of an entire defence for stating insufficient facts to constitute a cause of action or a defence, but only the striking out of irrelevant matter stated in a good cause of action or defence. The remedy is by demurrer (Code Civ. Pro., § 494; Walter v. Fowler, 85 N. Y. 621). It would serve no purpose to refer to the cases apparently to the contrary. Most of them are old, and none of them are authoritative.

Motion denied.