Notice of motion to strike out irrelevant matter - Rule 22

this rule from subsequently moving to strike out irrelevant and scandalous matter contained in a separate defense. Sheridan v. Tucker (1910), 138 App. Div. 436.

--

Code provisions respecting motion to strike out. — Irrelevant, redundant, or scandalous matter contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus stricken out, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. Code Civ. Pro., § 545.

To make pleading more definite and certain. - Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. Code Civ. Pro., § 546.

What is irrelevant. A pleading is irrelevant which has no substantial relation to the controversy. Goodman v. Robb (1886), 41 Hun, 605; Seward v. Miller (1852), 6 How. Pr. 312; Struver v. Ocean Ins. Co. (1860), 2 Hilt. 475; S. C., 9 Abb. 23; Fasnacht v. Stehn (1869), 53 Barb. 650; S. C., 5 Abb. (N. S.) 358; Park & Sons' Co. v. Nat. Druggists' Assn. (1898), 30 App. Div. 508, 52 N. Y. Supp. 475. And matter contained in a pleading is irrelevant which cannot affect the decision of the court, as having no bearing on the subject-matter of the controversy. Fabbricotti v. Launitz (1851), 3 Sandf. 743; Cahill v. Palmer (1864), 17 Abb. 196, affd. 45 N. Y. 478; Jeffras v. McK. & S. Co. (1874), 2 Hun, 351; S. C., 48 How. Pr. 122; Van Rensselaer v. Brice (1834), 4 Paige, 174; Peaslee v. Peaslee (1893), 2 Misc. 573, 22 N. Y. Supp. 527. Irrelevancy comprehends both prolixity or needless details of material matter, and also matter out of which no cause of action or defense could arise between the parties. See Bank v. Kitching (1861), 11 Abb. 435; S. C., 7 Bosw. 664; Weber v. Schwarz (1887), 12 N. Y. St. Rep. 621.

True test is whether matter constitutes a cause of action or defense. Ingersoll v. Ingersoll (1882), 1 Civ. Pro. R. 102; Averill v. Taylor (1851), 5 How. Pr. 476; Quintard v. Newton (1868), 5 Robt. 72; Doran v. Dinsmore (1861), 33 Barb. 86; S. C., 20 How. Pr. 503. Material allegations cannot be stricken out. Cahill v. Palmer (1864), 17 Abb. 196. A motion was denied where argument was necessary to show irrelevancy. Baer v. Seymour (1887), 12 N. Y. St. Rep. 166; Gaylord v. Beardsley (1893), 54 id. 234; Williams v. Folsom (1890), 32 id. 455.

Matter should not be stricken out of an answer where it may be pertinent by way of explanation, or as connected with the history of the subjectmatter of the litigation. Duprat v. Havemeyer (1884), 18 Week. Dig. 439.

Matter which is a mere recital of evidence can be stricken out. Weber

Notice of motion to strike out irrelevant matter- - Rule 22

v. Schwarz (1887), 12 N. Y. St. Rep. 621; Witherbee v. Slayback (1888), 14 id. 425; Schroeder v. Post (1896), 3 App. Div. 411, 38 N. Y. Supp. 677. Matter will not be stricken out of a complaint unless it appears that it will harm or do injustice to the defendant. Lugen v. Byrnes (1888), 15 Civ. Pro. R. 72; S. C., 15 N. Y. St. Rep. 970; Pacific M. S. S. Co. v. Irwin (1875), 67 Barb. 277; S. C., 4 Hun, 671; Nordlinger v. McKim (1891), 38 N. Y. St. Rep. 886; S. C., 14 N. Y. Supp. 515. Nor where it is material and relevant as to one defendant but irrelevant as to another. Brown v. Fish (1902), 76 App. Div. 329, 78 N. Y. Supp. 414.

Matter which is irrelevant as to one defendant but relevant as to another should not be stricken out. Brown v. Fish (1902), 76 App. Div. 329, 78 N. Y. Supp. 414. Matter which is concisely stated and is germane to issue should be left in. Rockwell v. Day (1903), 84 App. Div. 438, 82 N. Y. Supp. 993. Allegation in complaint in action for ejectment detailing history of disputes, etc., in respect to lands are irrelevant and may be stricken out. Brown v. Fish (1902), 37 Misc. 367, 75 N. Y. Supp. 760, revd. on other grounds, 76 App. Div. 329. In action for specific performance of land contract allegation in complaint as to motive of making agreement is not relevant. First Presb. Church v. Kennedy (1902), 72 App. Div. 82, 76 N. Y. Supp. 284.

A person should be left free to frame his own pleadings so far as the rules of good pleading will permit, and matter which is claimed to be irrelevant or redundant should be stricken out only when the moving party is actually aggrieved by it. Park & Sons' Co. v. Nat. Druggists' Assn. (1898), 30 App. Div. 508, 52 N. Y. Supp. 475; Stokes v. Star Co. (1902), 69 App. Div. 21, 74 N. Y. Supp. 528; Howard v. Mobile Co. of America (1902), 75 App. Div. 23, 77 N. Y. Supp. 957.

Where there is a semblance of a cause of action or defense set up in a pleading, its sufficiency cannot be determined on a motion to strike out as redundant or irrelevant. Walter v. Fowler (1881), 85 N. Y. 621; Hubbard v. Gorham (1885), 38 Hun, 162; Eaton v. Burnett (1883), 48 N. Y. Super. 548; Merritt v. Gonley (1890), 58 Hun, 372, 12 N. Y. Supp. 132.

On a motion to strike out irrelevant, redundant and scandalous matter the entire cause of action on defense cannot be stricken out but only the irrelevant matter. Tierney v. Helvetia-Swiss Fire Ins. Co. (1908), 129 App. Div. 694, 114 N. Y. Supp. 139. Thus, a motion to strike out an entire pleading as irrelevant or redundant matter is unauthorized. Stroock Plush Co. v. Talcott (1908), 129 App. Div. 14, 113 N. Y. Supp. 214; Benedict v. Dake (1852), 6 How. Pr. 352; Nichols v. Jones, id. 355; Hull v. Smith (1853), 8 id. 149; Howell v. Knickerbocker Life Ins. Co. (1863), 24 id. 475; Blake v. Eldred (1860), 18 id. 240; Hubbard v. Gorham (1885), 38 Hun, 162.

Counterclaim cannot be struck out as irrelevant. Fettretch v. McKay (1872), 47 N. Y. 426; Collins v. Swan (1869), 7 Robt. 94; Gross v. Bock (1887), 11 N. Y. St. Rep. 295; Whitehall Lumber Co. v. Edmans (1889), 22 id. 199.

Notice of motion to strike out irrelevant matter- - Rule 22

Where the defense set up is only irrelevant upon the theory that it cannot prevail, the remedy should be taken by demurrer. Smith v. American Turquoise Co. (1894), 77 Hun, 192, 28 N. Y. Supp. 329.

In a suit in equity irrelevant allegations which are not germane to the issue but present a new issue or tend to confuse the real issues, may be stricken out. Bradley v. Sweeny (1907), 120 App. Div. 315, 105 N. Y. Supp. 295.

In an equitable action, where the matter alleged might bear on the question of costs which are in the discretion of the court, such allegations should not be struck out on motion. Town of Dunkirk v. Lake Shore & Mich. So. Ry. Co. (1894), 75 Hun, 366, 27 N. Y. Supp. 105; Evans v. Burton (1887), 5 N. Y. St. Rep. 218; Howard v. Tiffany (1851), 3 Sandf. 695; Van Rensselaer v. Brice (1834), 4 Paige, 174.

A motion to strike out matter as irrelevant should only be granted where no doubt of the irrelevancy exists, and there must be some evidence that the retention of the allegations would embarrass the defendant in his defense. Lynch v. Second Ave. R. R. Co. (1896), 7 App. Div. 164, 39 N. Y. Supp. 1103; Littlejohn v. Greely (1862), 22 How. Pr. 345; McGregor v. McGregor (1868), 35 id. 385.

Motion must be supported on the face of the pleadings and cannot be denied on an affidavit denying the allegation. Stewart v. Forst (1895), 15 Misc. 621, 37 N. Y. Supp. 215.

Where a motion is made to strike out a whole paragraph in a complaint, part of which is relevant, the motion will be denied. Raines v. N. Y. Press Co. (1895), 92 Hun, 515, 37 N. Y. Supp. 45.

In an action for libel an allegation stating that the defendant was apprised by the plaintiff of the truth of the matter before publication of the libel relating thereto, should not be stricken out as irrelevant for it tends to show malice. Bingham v. Gaynor (1909), 135 App. Div. 426, 119 N. Y. Supp. 1010.

An allegation in a complaint in action for libel, that defendant was put to an expense in proving falsity of libel, was struck out as irrelevant. Robertson v. N. Y. Press Co. (1896), 2 App. Div. 49, 37 N. Y. Supp. 187.

Allegations should not be struck out because they merely present a doubtful question of the admissibility of evidence of the facts. Palmer v. Palladium Printing Co. (1897), 16 App. Div. 270, 44 N. Y. Supp. 675.

The court should carefully scrutinize the whole pleading, and if, in any possible view, the matter pleaded may be relevant or have the bearing claimed by it, it should not be stricken out. Dunton v. Haggerman (1897), 18 App. Div. 146, 46 N. Y. Supp. 758. See Scharf v. Warren-Scharf Asphalt Paving Co. (1897), 15 App. Div. 480, 44 N. Y. Supp. 491.

In an action to recover a balance due on the sale of stocks, an allegation in the answer that the plaintiff is guilty of a "misdemeanor" and liable to a penalty in a civil action because he failed to affix stamps on the transfer of the stock as required by the Tax Law, will not be stricken out as irrelevant and scandalous. Sheridan v. Tucker (1910), 138 App. Div. 436.

Notice of motion to strike out irrelevant matter - Rule 22

An allegation in a reply that the action in which the judgment set up in bar was obtained, was brought for the purpose of preventing the trial of the suit at bar on the merits does not affect the force or legal effect of such judgment, and may be stricken out as irrelevant. Henriques v. Garson (1898), 26 App. Div. 35, 49 N. Y. Supp. 1074.

Matter will not be stricken out of an answer when it is responsive to irrelevant matter in the complaint. McIntyre v. Ogden (1879), 17 Hun, 604.

An answer, or part thereof, cannot be stricken out for inconsistency. Smith v. Wells (1860), 20 How. Pr. 158; Bryant v. Bryant (1867), 2 Robt. 612; MacCall v. Am. Union Life Ins. Co. (1895), 89 Hun, 490, 35 N. Y. Supp. 364.

An answer upon information and belief cannot be stricken out as a sham, although the facts were within the defendant's knowledge. Hopkins v. Meyer (1902), 76 App. Div. 365, 78 N. Y. Supp. 459.

Discretion of court. Motions to strike out portions of a pleading as irrelevant or redundant are addressed to the sound discretion of the court and will be denied unless the court can clearly see that they have no possible bearing on the issues involved. Indelli v. Lester (1909), 130 App. Div. 548, 115 N. Y. Supp. 46.

Redundancy. — Irrelevant matter is redundant, but redundant matter is not necessarily irrelevant. Needless repetition of material allegations constitute redundancy as well as an insertion of irrelevant matter. Park & Sons' Co. v. Nat. Druggists' Assn. (1898), 30 App. Div. 508, 510, 52 N. Y. Supp. 475; Bowman v. Sheldon (1853), 5 Sandf. 657.

A party has been held aggrieved by every unnecessary allegation. Carpenter v. West (1851), 5 How. Pr. 53; Isaac v. Velloman (1857), 3 Abb. 464. But matter will not be stricken out if not incumbering the record, or seriously prejudicing the opposite party, though clearly redundant. Clark v. Harwood (1853), 8 How. Pr. 470; Pacific Mail S. S. Co. v. Irwin (1875), 4 Hun, 671; S. C., 67 Barb. 277; Brockleman v. Brandt (1860), 10 Abb. 141; Denithorne v. Denithorne (1858), 15 How. Pr. 232; White v. Kidd (1850), 4 id. 68.

Statements of evidence are redundant and will be stricken out. Wooden v. Strew (1855), 10 How. Pr. 48; Williams v. Hayes (1851), 5 id. 470.

The remedy where one count or statement containing facts constituting two or more distinct causes of action, is to compel the plaintiff to elect between them, or strike out all but one of them for redundancy. Cheney v. Fiske (1862), 22 How. Pr. 236; Waller v. Raskan (1856), 12 id. 28; Gooding v. McAllaster (1854), 9 id. 123; Robinson v. Judd, id. 378; Benedict v. Seymour (1852), 6 id. 298.

A general denial, in addition to specific denials, will not be stricken out as redundant. Homan v. Byrnes (1882), 14 Week. Dig. 175. But where a denial was included in each of five separate defenses, a motion to strike

Notice of motion to strike out irrelevant matter

Rule 22

out was granted. Sanford v. Rhoads (1902), 39 Misc. 548, 80 N. Y. Supp. 404.

Where a defendant repeats by specific reference all allegations of a good defense in four other separate defenses, the remedy is to strike out as redundant the defenses repeated if it be immaterial to the additional defenses attempted to be interposed by the new matter. Wiener v. Boehm (1908), 126 App. Div. 703, 111 N. Y. Supp. 126.

In malicious prosecution, allegations of aggravating circumstances will not be stricken out as redundant. Brockleman v. Brandt (1860), 10 Abb. 141. And in such an action, a defense, that the defendant had probable cause after a denial of the allegations of the complaint, alleging want of probable cause, is redundant. Rost v. Harris (1861), 12 Abb. 446.

Hypothetical clause to the effect that if note was indorsed by defendant's testator it was indorsed under circumstances stated is redundant. Corn v. Levy (1904), 97 App. Div. 48, 89 N. Y. Supp. 658. Where the only defect is reiteration of averments, and it does not appear that defendant is prejudiced, motion to strike out should be denied. Pope Mfg. Co. v. Rubber Goods Mfg. Co. (1905), 100 App. Div. 349, 91 N. Y. Supp. 828.

Scandalous matter. Scandalous matter may be stricken out as within the inherent power of the court. Bowman v. Sheldon (1853), 5 Sandf. 657; Opdyke v. Marble (1865), 18 Abb. 266; Carpenter v. West (1851), 5 How. Pr. 53. And the costs to strike out may be charged upon the attorney. McVey v. Cantrell (1876), 8 Hun, 522.

A motion to strike out scandalous matter, and not a demurrer, is the proper remedy. Armstrong v. Phillips (1891), 14 N. Y. Supp. 582.

The court may strike out scandalous matter on its own motion. People ex rel. v. Murray (1893), 22 N. Y. Supp. 1051; S. C., 22 Civ. Pro. R. 53. The granting of a motion is within the discretion of the court. Wehle v. Loewy (1893), 2 Misc. 345, 21 N. Y. Supp. 1027. And where the attorney is aggrieved by the scandalous matter, he may make the motion. Id.

Where, in an action on an accident policy issued by defendant insuring plaintiff against suits for personal injuries, the complaint alleges that the defendant conducted the defense in so indifferent a manner that judgment was given against the plaintiff, such allegations may not be stricken out as scandalous, where plaintiff, after sustaining an action under the policy himself, complains that defendant negligently defended the personal injury action. Apple v. People's Surety Co. (1910), 66 Misc. 562.

Indefinite or uncertain allegations. See Code Civ. Pro., § 546, ante, The indefiniteness and uncertainty are only such as appear on the face of the pleading. Brown v. M. S. R. R. Co. (1858), 6 Abb. 237; Hopkins v. Hopkins (1882), 28 Hun, 436.

Whether a pleading is indefinite and uncertain must be determined by inspection thereof and not upon affidavits. Deubert v. City of New York (1908), 126 App. Div. 359, 110 N. Y. Supp. 403.