Rankin v. Bush-Brown

108 A.D. 294, 95 N.Y.S. 719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1905
• Status: Published

Opinion

Ingraham, J.:

Without expressing any opinion upon the relevancy of the facts alleged in the answer, which were stricken out by the court below as irrelevant, as a defense to thei plaintiff’s cause of action, I do not - think that these allegations are so plainly irrelevant as to justify the court in striking them out. This answering defendant is a surety upon a bond given to the Elmira National Bank by John J. Bush, who was its cashier. The portions of the answer stricken out substantially determined the sufficiency of a separate defense, and that question should be determined by demurrer, or upon the trial, and -not by a motion to strike out as irrelevant. (Smith v. American Turquoise Co., 77 Hun, 192.) I think the defendants should be allowfed to set forth these facts, and have the court determine upon the trial of either an issue of law or an issue of fact the question as to whether any defense is alleged.

- The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, P. J., Patterson,. Laughlin and ' Olarke, JJ., concurred.

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