Rost v. Harris

12 Abb. Pr. 446

Opinion

Bosworth, Ch. J.

—The third defence is, in substance, that the affidavits on which the plaintiff was arrested state truly the representations which the plaintiff made, and that the representations were false, and that such facts constituted probable cause.

The defence contains no new matter. If it states accurately the whole contents of the affidavits on which plaintiff was arrested, and if the defendants’ opinion that they constitute probable cause is correct, then it attempts to demonstrate that there was probable cause for making the complaint on which the plaintiff was arrested.

The second paragraph of the answer denies every allegation of the complaint not admitted by the first.

It therefore denies that the plaintiff’s arrest was wilful or malicious, or without any probable cause.

The third defence does no more than attempt to detail the actual'facts, and insist they constitute probable cause. I think all of these alleged facts are but matters of evidence upon the issues raised by the second paragraph of the answer, and that the third defence should be stricken out, as not containing any new matter, nor denying any allegation of the complaint not previously controverted, and as being entirely redundant matter. (3 Duer, 684.)

I do not see that the plaintiff would be embarrassed by the matter remaining on the record. Seven dollars costs of the motion will be directed, to abide the event.