
    Thomas A. Edison, Jr., Respondent, v. Press Publishing Company, Appellant.
    Pleading— a defense referring to another for certain of its facts may set forth such facts in an amended answer where they are stricken out of the defense referred to.
    
    Where an answer contains several defenses, in one of which the defendant sets forth certain facts in full, and in the others of which he incorporates such facts hy reference to the prior defense, if the facts to which reference is made are stricken out of the defense in which they were set forth in full as irrelevant and immaterial, the defendant is not precluded from serving an amended answer in which the facts in question are set forth in full in the defenses into which they were originally incorporated hy the reference to such defense in which they were originally stated.
    Appeal by the defendant, the Press Publishing Company, from an order of the Supreme Court, made- at the New York Special Term and entered, in the office of the clerk of the county of New York on the 11th day of May, 1903, denying the defendant’s motion to compel the plaintiff to accept service of an amended answer.
    
      W. II. Vcm Benschoten, for the appellant.
    
      Louis LLctsbrouck Newkirk, for the respondent.
   O’Brien, J.':

This is a libel action. ■ The original answer contained several defenses, and in the second defense to the first cause of action the defendant set forth in full certain facts upon which it relied. In the third defense to the first cause of action and in the second and third defenses to the second cause of action these facts' were set forth by an allegation as follows: The defendant repeats and realleges each and every paragraph of the second defense to the first • cause of action with like effect as if here fully set forth.”

The plaintiff was successful in having stricken out on motion as irrelevant and immaterial certain allegations of the second defense to the first cause of action. As these were thus stricken out the defendant could no longer refer to them, and, therefore, in the other defenses they were set forth in full. The plaintiff, however, refused to,accept the amended answer in.-this form, claiming that the defendant had no right to insert in the other defenses mentioned the allegations which in the second defense to the first cause of action had been stricken out. The court at Special Term having agreed in this view denied the motion made by the defendant to compel the plaintiff to accept the amended answer.

We think this was error, and for the reason that allegations which may be irrelevant and immaterial as they appear in one defense may, as they appear in another defense, be relevant and material; and, as the plaintiff’s motion was directed merely to striking out the allegations in one defense, the granting of such motion did not necessarily import a decision that they were improper as part of the subsequent defenses. We think, therefore, that the defendant having in the amended answer omitted the objectionable features of the second defense to the first cause of action, which was the relief which the plaintiff sought on his motion, the latter was not warranted in insisting that such allegations be stricken from the subsequent defenses, but should have accepted the amended answer. It may be that upon a motion these allegations would be deemed irrelevant and immaterial with respect to the subsequent defenses, but, upon that question, the defendant is entitled to its day in court.

The order, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs, and with leave to the plaintiff, if he deems himself aggrieved, to move to strike out any objectionable matter contained in the. subsequent defenses.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, with leave to plaintiff to move to strike out any objectionable matter contained in the subsequent defenses.  