Tierney v. Helvetia Swiss Fire Insurance
Appellate Division of the Supreme Court of the State of New York
Appeal from Special Term, Kings County. Action by John J. Tierney against the Helvetia Swiss Fire Insurance Company and another. From an order striking out a defense, the defendant named appeals. Modified and affirmed.
1Opinion of the CourtMiller, J.
Section 545 of the Code of Civil Procedure authorizes the striking out of “irrelevant, redundant, or scandalous matter; contained in a pleading.” That section does not authorize the striking out of an entire cause of action or defense, but only of irrelevant, redundant, or scandalous matter contained therein. The sufficiency of the matter pleaded as a defense cannot thus be tested. An entire defense, though insufficient, cannot be stricken out as irrelevant. Hanson v. Collier, 119 App. Div. 794, 104 N. Y. Supp. 787; Cardeza v. Osborn, 33 Mise. Rep. 46, 65 N. Y. Supp. 450, affirmed 54 App.…
2Cases cited3 opinions
- Cardeza v. OsbornNew York Supreme Court · 1900
- W. T. Hanson Co. v. CollierAppellate Division of the Supreme Court of the State of New York · 1907
- Albrecht v. New York Central & Hudson River RailroadAppellate Division of the Supreme Court of the State of New York · 1900