
    THOMAS ARMSTRONG, Appellant, v. PETER PHILLIPS, as Commissioner of Highways of the Town of Plattsburgh, Respondent.
    
      Pleadings — demurrer — confessedly scandalous matter, although demurrable, may be stricken out on motion — time to serve an amended pleading, after a service by mail.
    
    The second defense of an answer contained matter which was both scandalous and demurrable. While a motion was pending to strike it out as scandalous and irrelevant, the party making the answer served an amended answer which omitted this defense. Thereupon the court denied the motion mainly upon the ground that the remedy was by demurrer.
    
      Sold, error; that the plaintiff should not, in order to obtain relief, be compelled, as he would be by demurring, to admit the truth of the scandalous allegations.
    A party by serving his pleading by mail does not thereby secure twice the time, to serve an amended pleading, which he would have had had the service been a personal one.
    Appeal by the plaintiff Thomas Armstrong from an order, entered in the clerk’s office of the county of Clinton on the 13th day of October, 1890, denying his motion to strike out from the defendant’s answer certain parts of the “ second defense ” as scandalous, and certain other parts thereof as irrelevant and redundant.
    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, 1S90, 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 plaintiff’s attorney.
    
      T. Armstrong, for the appellant.
    Palmer, Weed <& Kellogg, for the respondent.
   Lanbon, 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 witliin 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the whole objectionable count, the subject-matter of the motion was no longer before the court, and the motion was superseded.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, 605) is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith to protect the party’s supposed rights. The scandalous matter here was obviously inserted not to protect the defendant but to insult the plaintiff, and if the plaintiff had no remedy against it, except by demurring, and thereby confessing the truth .of the insulting matter, the defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. (See Carpenter v. West, 5 How. Pr., 53; McVey v. Cantrell, 8 Hun, 522.)

The defendant had but twenty days in which to serve his amended answer as of course. (Sec. 542.) He could not, by serving his original' answer by mail give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. (Sec. 198 and Throop’s note.) It follows that the amended answer was properly returned and the motion was not superseded and ought to have been granted.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.

Learned, P. J., and Mayham, J\, concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.  