
    George C. Rankin, as Receiver of the Elmira National Bank Respondent, v. John J. Bush, Appellant, Impleaded with Fanny Brooks Bush and Henry K. Bush-Brown, Defendants.
    
      Motion to strilce out irrelevant matter — the validity of a defense not determined thereon.
    
    The proper way in which to present the question as to the sufficiency of a defense is by demurrer or upon the trial, and not by motion to strike out as irrelevant or redundant the allegations constituting the same.
    • Appeal by the defendant, John J. Bush, 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 12th day of August, 1905, granting the plaintiff’s motion to strike out certain allegations of the appellant’s answer as irrelevant and redundant.
    
      C. Tracey Stagg, for the appellant.
    
      Winston H. Hagen, for the respondent.
   Ingraham, J. :

I am inclined to think that these allegations in the answer should not have been stricken out. Assuming that the respondent is correct in his contention -that the alleged act of the' directors of the Elmira • bank was ulbra vires,, the mere fact that the directors joined with the defendant Bush as wrongdoers, and thus assumed liability with him for the wrongful act in misappropriating the funds of the bank, could not in any way make the transaction a valid one or affect the bank. Still the defendants have pleaded these facts as a defense. Striking them out on motion is in substance determining the validity of such a defense, and that, I do not think, was proper upon .motion. If the defense as a whole is not sufficient the plaintiff can raise that question by demurrer, or upon the trial of the action. Section 545 of the Code of Civil Procedure? authorizing the court to strike out irrelevant and redundant matter, applies to allegations which arel irrelevant or redundant to the cause of action, or to a defense pleaded. Without expressing any opinión upon the sufficiency of this defense as pleaded, I think the proper way to present the question as touts sufficiency is either by demurrer or upon the trial..

It follows that the order appealed from should be reversed, faith-ten dollars costs and disbursements,, and the motion denied, with ten dollars costs. , .

O’Brien, P. J., Patterson, ' Laughlin and Clarke, JJ.-, concurred. ■

Order reversed,' with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  