Waltham Manufacturing Co. v. Brady

67 A.D. 102, 73 N.Y.S. 540

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Patterson, J.:

The plaintiff appeals from two orders, by one of which its motion to strike out certain parts of the defendants’ answer was granted, but no provision is contained in that order requiring the service by the defendants of an amended answer. The second order was made upon the denial of the plaintiff’s motion to resettle the first by adding thereto the requirement that an amended answer be served. The appeal from the second order must be dismissed, as such an order is not appealable.

Concerning the first order, it is quite evident that it should have contained a provision requiring the service of the amended answer. An examination of the pleading from which irrelevant and redundant matter was stricken out renders that apparent. Where a pleading is reformed as radically as was the answer in this case, by the order of the court striking out certain parts of it, the reformed or substituted pleading should be served. The answer condemned in this case set up various separate defenses, the fourth of which was preceded by the formula “ realleging, reasserting and reiterating each and every allegation hereinbefore contained.” That formula was stricken out, as were also certain affirmative allegations incorporated in the fourth defense. The plaintiff may desire to demur to what is left of the fourth defense, and cannot well do ,so with nothing to present to the court but the answer as originally drawn and the order of the court striking out parts thereof. The defendants should have been required to serve an amended answer, and the order granting the motion to strike out should be modified by inserting a proper provision requiring such service.

The appeal from the order to resettle order must be dismissed, with ten dollars costs.

The order striking out parts of the answer should be modified as above directed, with ten dollars costs and disbursements to the appellant.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Appeal from order denying resettlement dismissed, with ten " dollars costs. Order striking out parts of answer modified as directed in opinion, with ten dollars costs and disbursements to appellant.