Smith v. American Turquoise Co.

28 N.Y.S. 329, 77 Hun 192, 84 N.Y. Sup. Ct. 192, 59 N.Y. St. Rep. 830

Opinion

VAN BRUNT, P. J.

It would seem, from an examination of the papers upon this appeal, that the plaintiffs seek upon this motion to test the sufficiency of a defense set up in the answer. It is true that the motion is directed to a paragraph of the defense, but it is evident that in this attack upon this paragraph it is sought to have it adjudged that the defense set up is bad. If we understand the theory of the Code, such an issue must be disposed of upon demurrer, and cannot be determined by motion. If the defense set up is available, the paragraph objected to cannot be considered to be either irrelevant, redundant, or scandalous; and it is only upon the theory that the defense cannot prevail that the paragraph becomes irrelevant. The order should be affirmed, with $10 costs and disbursements. All concur.