Uggla v. Brokaw

77 A.D. 310, 79 N.Y.S. 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinions

Latjghlin, J.:

The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. It is alleged that the defendant was the owner of the building No. 524 Fifth avenue known as Sherry’s; that there were negligently erected and standing on the roof of the building “ divers structures ” constructed of brick and mortar and inclosed by roofs of metal and glass; that these structures were insecurely fastened; that the bricks were improperly laid with a poor and inferior quality of cement or mortar, so that the roofs and bricks of the structures were in an unstable and dangerous condition and liable to be blown off into the roadway of Fifth avenue; that through the carelessness and negligence of the defendant, who had notice of this dangerous condition, “ the roofs of the said structures or one of them and divers bricks, mortar and other building material used in the construction of the said structures or one of them, during .a storm of wind and rain, were blown from the roof of the said building ” into the roadway of Fifth avenue and upon the plaintiff, who was driving by, inflicting the injuries to recover for which the action is brought.

The answer admits that the defendant is the owner in fee of the reversion, but denies that he is the owner of the present existing estate in said premises or that he has possession, occupancy or control of the same, and puts in issue the other material allegations of the complaint.

Each of the defenses to which the demurrer relates is pleaded as a further and separate defense, and the first subdivision of each recites that the defendant “ reiterates and repeats the allegations ” in that part of the answer preceding the separate defenses, specifying each paragraph thereof, which includes both admissions and denials; and all, except the sixth, contain the allegation that the defendant never had knowledge or notice of any defect or weakness in the construction of the building or any part thereof. In the second defense it is alleged that for many years prior to the accident the building described in the complaint was properly and safely constructed by skilled and competent persons and of the best material, and was in a safe and secure condition, and that it was in the exclusive occupation, care and custody and control of a tenant for years continuously thereafter. In the third defense it is alleged that the building was • erected by a tenant for years, who was in the exclusive occupation, care, custody and control of the premises at

the time, and so continued for many years thereafter, and down to the time of the accident. In the fourth defense it is alleged that the preparation of plans for the construction of the building was delegated to a competent and skilled architect and engineers; that' both this defendant and his tenant fully relied on such architect and engineers and were not skilled and informed in matters relating to the safety of construction of such structures'; that such architect and engineers superintended the construction and inspection of the work and materials, and that the only interference on the part of this defendant or his tenant was the signing of the contract by the tenant; that the work was delegated to competent, independent contractors, who undertook to supply the best materials and most skilled and careful labor. In the fifth defense it is alleged that the accident was the direct result of “ vis major in that a hurricane of extraordinary violence unseated from reasonably secure fastenings the materials which injured the plaintiff,” and that this result was not produced or contributed to by any faulty or defective construction. In the sixth defense it is alleged that the injuries were solely caused through the negligence of the plaintiff.

Each of these defenses contains denials of material allegations of the complaint, and, while such denials might have been stricken out upon motion if the plaintiff were aggrieved thereby (Code Civ. Proc. § 545 ; Flechter v. Jones, 64 Hun, 275 ; State of South Dakota v. McChesney, 87 id. 293 ; Stieffel v. Tolhurst, 55 App. Div. 532), yet so long as they thus remain a demurrer will not lie, even though the other matter pleaded does not constitute a defense., (Flechter v. Jones, supra ; Stieffel v. Tolhurst, supra ; Holmes v. Northern Pacific Railway Co., 65 App. Div. 49 ; Wintringham v. Whitney, 1 id. 219.)

But there is another reason why demurrer will not lie in this case. It is not seriously contended that the matters set up in each of these defenses, if true, will not constitute a defense to the action; and it is quite clear that if they be established the plaintiff cannot succeed. The principal, if not the sole contention of the plaintiff is that none of these defenses contains new matter, but that all are provable under the preceding denials, which is undoubtedly true. It does not follow, however, that the defenses are insufficient in law upon the face thereof. The Code provides that the answer may contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or a statement of any new matter constituting a defense or counterclaim, without repetition (Code Oiv. Proc. § 500); but a demurrer is only authorized “ to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof.” (Code Oiv. Proc. § 494.) Inasmuch as the matters set up in these several defenses are not extrinsic to the matters set up in the complaint as the basis of the cause of action, they are not “new matter.” (Manning v. Winter, 7 Hun, 482.) Where a pleading contains matters not authorized in such a pleading, so that it cannot be made a material issue, it may, if a party be aggrieved thereby, be stricken out by the court upon motion. (Eidlitz v. Rothschild, 87 Hun, 243; Frank Brewing Co. v. Hammersen, 22 App. Div. 475 ; Rensselaer & Washington Plank Road Co. v. Wetsel, 6 How. Pr. 68.) There seems to be some confusion in the decisions as to whether this authority is derived from section 545 of the Code, which authorizes the striking out of irrelevant, redundant or scandalous matter contained in a pleading, “ upon the motion of a person aggrieved thereby,” or whether it is founded upon the inherent power of the court. It is not essential that we should determine whether the power to strike it out is inherent or expressly conferred; but it may be observed that matter which can have no bearing on the issues, either on account of its manifest irrelevancy or because the law declares that it cannot be introduced, would seem to be irrelevant; and if it be a repetition of matter already at issue by other parts of the pleading, it would be surplus-age and would fall under the authority to strike out redundant matter. It is contended, however, that this authority .to strike out matter as irrelevant or redundant does not extend to an entire count pleaded as a separate defense or counterclaim. The case of Walter v. Fowler (85N. Y. 621) is cited as authority for this proposition. We think the Court of Appeals did not so hold in that case. There an attempt was made to set up a counterclaim and a motion was made to strike it out; and the court held that it contained a semblance of a cause of action, and that while its sufficiency might be tested by demurrer, it could not be by motion. In Goodman v. Robb (41 Hun, 605) the court did say that “ an entire -count cannot be stricken out as irrelevant or redundant; ” but the matter there under consideration was neither irrelevant nor redundant, and it was not a motion to strike out matter as irrelevant or redundant. It is also stated in the opinion ih that case that “ irrelevant and redundant matter cannot be demurred to, but the objection must be taken by a motion to strike out.” The only point necessarily decided in that case, however, was that the sufficiency of a count of relevant matter could not be determined by motion. We think a demurrer will not lie to a count of an answer pleaded as a separate defense on the ground of redundancy, where the matter thus pleaded as a defense, if true, will defeat the action. In the case at bar the matter is redundant; but since if true it will bar a recovery, we think it cannot be said that the defense, whether consisting of new matter or not, is insufficient in law upon the face thereof, which, as has been seen, is the only ground upon which a demurrer is authorized by the Code. (Wiley v. Village of Rouse's Point, 86 Hun, 495; Flechter v. Jones, supra; Holmes v. Northern Pacific Railway Co., supra ; Moak’s Van Sant. Pl. 771.)

In the case of Bogardus v. Metropolitan St. Ry. Co. (62 App. Div. 376), which was an action for personal injuries, we held that the plaintiff was not aggrieved by an allegation in the answer setting up that the accident occurred through his contributory negligence and without negligence on the part of the defendant, and that his motion to strike this out as irrelevant or redundant should be denied. The reasons for that decision do not apply to any of the counts of this answer except the last, and we do not intend to express any opinion as to whether the other counts of the answer are so unnecessary and of such a character that the court would be justified in striking them out as redundant. There should be, and we think there is, a remedy by motion for striking out redundant matter, even in those cases where it embraces an entire count pleaded as a separate defense. Recourse may and should be had to this remedy where there has been a departure from the usual practice to the prejudice of the adverse party by unduly lengthening a pleading or otherwise confusing or obscuring the issues.

It follows that the interlocutory judgment should be affirmed, with costs.

Patterson and O’Brien, JJ., concurred.