Gibson v. McDonald

139 A.D. 51, 123 N.Y.S. 504, 1910 N.Y. App. Div. LEXIS 2120

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 1910
• Status: Published

Opinion

Scott, J.:

The defendant appeals from an order striking out portions of his answer as scandalous and redundant, and requiring him to make one paragraph thereof .more definite and certain. The action is for damages for false arrest and imprisonment.. The defendant is one of the coroners of the city of New York, and the arrest of which plaintiff complains wás upon a warrant issued by defendant as coroner as the result of an investigation conducted by him as to the probable cause of the death' of one Alice C. D. Kin nan. A coroner is, in certain classes of cases, a magistrate-with power to hold examinations, issue warrants and commit or discharge a person suspected of crime (People v. Jackson, 191 N. Y. 293, 297), and the Code of Criminal Procedure,

* in force when plaintiff was arrested, provided when and under what circumstances it w.as the duty of a coroner to issue such a warrant. Being an officer of limited and restricted jurisdiction it was proper for defendant to specifically plead, both in justification and'in mitigation of damages, the facts leading up to the issue of the warrant, and which defendant considers that it will be necessary to prove in order to establish the validity of the warrant, and the right of the defendant to issue it. This the defendant has attempted to do in the portions of the answer which have been stricken out. The order appealed from strikes out in foto three separate defenses of the character above described. Practically the only ground on which it is sought to sustain this order is that; the matters stricken out are insufficient as defenses. This is wholly untenable. An order to strike out as redundant is not a substitute or, alternative for a demurrer, and it is too well settled to justify further discussion here, that an entire defense, even though it be insufficient in law, cannot be stricken out as irrelevant, redundant or scandalous. (Stroock Plush Co. v. Talcott, 129 App. Div. 14, 18; Tierney v. Helvetia-Swiss Fire Ins. Co., Id. 694.) The fifth separate" defense, being a plea in .mitigation of damages, is ordered to be made more definite and certain “ by being properly defined and entitled,” the apparent objection to it being that it is termed “ a fifth and further answer,” instead of “ defense.” This was a perfectly obvious clerical error, which could by no possibility prejudice or mislead the plaintiff, and constituted too trivial a defect in the pleading to justify an appeal to the "court to correct it. The order 'contains an unusual and quite unauthorized direction as to costs. The defendant is “permitted” to serve an amended answer, omitting the matter stricken out by the order appealed from, and to pay plaintiff’s taxable costs to date, and in default of so doing the whole answer is stricken out. While permissive in form this provision is coercive in effect, and amounts to the imposition upon plaintiff of all" the costs of the action, as costs upon the motion.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingeaham, P. J., McLaughlin, Clabke and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.'

See Code. Crim. Proc. § 773 et seq., as amd. by Laws of 1899, chap. 464.— [Rep.