Armstrong v. Phillips
New York Supreme Court
Appeal from special term, Clinton county. Action by Thomas Armstrong against Peter Phillips, commissioner of highways. The answer was served by mail, August 9, 1890. Notice .of this motion was served August 26, 1890, to be heard September 9, 1890. September 5, 1890, the defendant served an amended answer by mail, in which no portion of.the matter sought to be stricken out was. inserted.
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Appeal from special term, Clinton county. Action by Thomas Armstrong against Peter Phillips, commissioner of highways. The answer was served by mail, August 9, 1890. Notice .of this motion was served August 26, 1890, to be heard September 9, 1890. September 5, 1890, the defendant served an amended answer by mail, in which no portion of.the matter sought to be stricken out was. inserted. This answer was seasonably returned to defendant’s attorneys with this indorsement; “Returned for the reason that defendant’s time to answer has expired, and that a motion is pending;” signed by the…
1Opinion of the CourtLandon, J.
Part of the “second” answer was scandalous, another part of it irrelevant, and the whole of it demurrable. Plaintiff’s motion to strike it out, in whole or in part, was denied, because—First, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served, but within due time, and having omitted therefrom the whole objectionable count, the subject-matter of the motion was no longer before the court, and the motion was superseded. Goodman v. Robb, 41 Hun,…
2Cases cited1 opinion
- Carpenter & Wilcox v. West & Van BenthuysenNew York Supreme Court · 1850
3Cited by10 opinions
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- Bulova v. BarnettAppellate Division of the Supreme Court of the State of New York · 1920
- Schlesinger v. Borough BankAppellate Division of the Supreme Court of the State of New York · 1906
- In re AnonymousNew York Surrogate's Court · 1937
- Schlegel v. Roman Catholic Church of the Most Holy TrinityNew York Court of Appeals · 1909
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