Legal Opinion
Vernon Lumber Corporation v. Harcen Const. Co.
District Court, E.D. New York
Decided April 19, 1945No. Civil Action 4781PublishedCited by 4 opinions
1Opinion of the Court
MOSCOWITZ, District Judge.
Defendant has moved to strike from the plaintiff’s reply to its counterclaim, as insufficient, the first, second and third affirmative defenses contained therein. Plaintiff asserts the objection that the relief sought is in the nature of a demurrer, which has been expressly abolished by Rule 7(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and that there is no authority to strike part of a pleading as insufficient. On the contrary, there is extensive and undoubted authority to the effect that a motion to strike an affirmative defense…
2Cases cited10 opinions
- Dioguardi v. DurningCourt of Appeals for the Second Circuit · 1944
- Insurance Co. v. MowrySupreme Court of the United States · 1878
- Jacksonville, Mayport, Pablo Railway & Navigation Co. v. HooperSupreme Court of the United States · 1896
- The HarrimanSupreme Court of the United States · 1870
- Mawhinney v. Millbrook Woolen Mills, Inc.New York Court of Appeals · 1921
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3Cited by4 opinions
- Eastern Air Lines, Inc., Plaintiff-Appellant-Cross v. McDonnell Douglas Corporation, Defendant-Appellee-CrossCourt of Appeals for the Fifth Circuit · 1976
- Krauss v. Keibler-Thompson Corp.District Court, D. Delaware · 1976
- Vernon Lumber Corp. v. Harcen Const. Co.Court of Appeals for the Second Circuit · 1946
- Mitchell Metal & Mineral Corp. v. Chas. Pfizer & Co.Appellate Division of the Supreme Court of the State of New York · 1971