
    LUIS GAROFALO, Plff., v. CITY OF RIO PIEDRAS, Represented by its Mayor, Enrique Acosta y Marquez, Dft.
    San Juan,
    Law,
    No. 1035.
    On Motion to Strike Parts os' Answer.
    Pleading — Motion to Strike.
    1. A motion to strike cannot take the place of a demurrer. The motion relates to superfluous phraseology, which demurrer relates to insufficient or improper phraseology. The one cannot he used for the other.
    Contract — Necessary Allegations.
    2. If a contract is to be paid for by money obtained from public authorities, that fact must be alleged in order to he material.
    Contract — Approval.
    3. An allegation that a contract is invalid because not approved by the Commissioner of the Interior is a denial of its legal execution.
    Contract — Superseded.
    4. An allegation that a new contract was entered into which annulled the old one is in effect an allegation that the old contract ceased to be effective, and that a new one took its place.
    Answer — Construction.
    5. Under the Porto Rican practice,. Code of Civil Procedure, § 122, denials and new matter set out in the answer must be construed together as a whole.
    Opinion filed July 14, 1914.
    
      Messrs. Savage & Francis for plaintiff.
    
      Mr. José de Diego for defendant.
   HamiltoN, Judge,

delivered tbe following opinion:

The answer in this ease admits as true all matters contained in the first four paragraphs of the complaint, amongst others that plaintiff and defendant entered into a contract for the construction by the plaintiff of a municipal hospital for the defendant. It denies that the plaintiff has been ready to carry out the contract, that defendant has interfered, and that the plaintiff has incurred any expense. The answer then goes on and under tbe beads of “New Matter” makes certain allegations as to bow tbe funds were to be obtained, denies proper execution of tbe contract, and approval of tbe loan by tbe executive council, and alleges that tbe plaintiff and defendant entered into a new contract wbicb “annuls tbe contract upon wbicb tbe suit was brought.”

Tbe plaintiff now moves to strike out all these allegations of new matter on tbe ground mainly that they are immaterial, irrelevant, and redundant, and in part conclusions of law.

1. A motion to strike has its uses. “All inconvenient and redundant matter in a pleading shall be stricken out by tbe court on motion of tbe opposed party.” Code of Civil Procedure, § 123. But a motion to strike cannot take tbe place of a demurrer. “Tbe plaintiff may . . . demur to the answer of tbe defendant, or to one or more of tbe several defenses or counterclaims set up in tbe answer.” Code of Civil Procedure, § 116. A demurrer may be taken, amongst other grounds, because tbe answer does not state facts sufficient to constitute a defense or counterclaim, or is ambiguous, unintelligible, or uncertain. Code of Civil Procedure, § 117. A motion to strike, therefore, relates to superfluous phraseology, while a demurrer relates to insufficient or improper phraseology. Tbe one cannot be used for tbe other. It follows that so far as the present motion sets up defenses of illegality, it cannot be sustained.

2. Tbe new matter complained of in tbe answer, apart from tbe question of illegality, is in tbe first place that tbe fund to pay for a hospital was to be obtained from tbe People of Porto Bico. If this is a part of tbe contract, it should be so alleged, wbicb is not done. Tbe same is true as to tbe approval of tbe expenditure by tbe executive council. Non constat that the defendant had the money otherwise with which it could legally pay for the construction of the building. The motion to strike will therefore be granted as to the new matter numbered 1 and 4. ■ ■

3. The allegations as to the invalidity of the contract without the approval of the Commissioner of the Interior is a denial that the contract was legally executed. This is a proper issue. The motion will be denied as to this.

4. The allegation that a new contract was entered into which annulled the old one cannot be said to be irrelevant or redundant. It is an allegation, although in general terms, that the old contract ceased to be effective, and that a new one took its place. If it be deemed that the wording is' not legally apt, this would be a matter for demurrer, and not for a motion to strike.

5. As the answer must be construed as a whole, the admission of making the contract will be held to be qualified by the denials contained in the “new matter.” The complaint will be construed as a whole. “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a- view to substantial justice between the parties.” Code of Civil Procedure, § 122. It may be that the allegations as to which the motion to strike is sustained above can be amended so as to show that they are a part of the contract or that they are otherwise proper defenses. At present, the allegations are not sufficient for either purpose, and on their face appear to be insufficient. ' .

The motion to strike therefore is sustained as to the allegations 1 and 4, and overruled as to the other grounds set up, and it is so ordered.  