
    The President, &c., of Lee Bank, Respondents v. John B. Kitching, Appellant.
    1. It is no defense to an action on bills of .exchange, brought by an indorsee against the acceptor, that the defendant accepted the bills for the accommodation of the drawer, relying on an assurance from the drawer that the bills would be secured and paid, and that the payee had provided means therefor; that in fact the said payee did place in the hands of the plaintiff, when the bills were discounted, property or funds to cover such bills, which the plaintiff still holds; and that both the drawer- and the defendant (acceptor) were insolvent when the plaintiff discounted the bills, and the .discount was made entirely on the faith and credit of the security so furnished by the payee.
    2. Such allegations in the defendant’s answer, in such an action, coupled with a claim that the defendant should not be required to pay the bills until the securities held by the plaintiff have been applied thereto, and asking that before judgment against the defendant, the plaintiff may be ordered to make such application, will be struck out as irrelevant. (Code, § 160.)
    3. What answers or defenses forming parts of an answer, and what matter in an answer or defense forming part thereof, or of a defense therein, maybe treated as irrelevant, and what are sham and frivolous, considered by Hoffman, J.
    (Before Hoffman, Woodruff, Moncrief, Robertson and White, J. J.)
    Heard December 22,
    decided December 29, 1860
    Appeal from an order, made at special term by Mr. Justice Moncrief, striking out part of an answer as irrelevant.
    The action is brought by the plaintiffs as indorsees of two bills of exchange, drawn by Pierre C. Kane, payable .to the order of Mrs. Edith Kane, against the defendant as the acceptor thereof.
    The answer first denied the delivery of the bills to the payee, and the indorsement to the plaintiffs for value, and alleged that the defendant received no consideration for his acceptance.
    Then followed the allegations which were struck out by the order appealed from, as follows, viz. :
    “And this defendant, further answering, says, that when he accepted the said drafts Pierre C. Kane was his debtor, and that he accepted them merely for said Kane’s accommodation, and to enable him to raise money from the Lee bank, and upon the faith of an assurance received from said Kane, upon the authority of Mrs. Edith Kane, that she had provided the means for their payment, and had placed property or funds in the hands of the said bank, to the extent of 15,000 dollars, to cover these and other drafts to that amount; and that defendant’s said acceptances would therewith be provided for at their maturity.
    “And this defendant further says, that the said Edith Kane did, as he is informed and believes, in fact furnish such security for the purposes aforesaid at said Pierre C. Kane’s request, and that the said, bank now holds the same; and that, upon the receipt thereof, the said bank discounted the said acceptances at the request and for the benefit of the said Pierre C. Kane; and that, at the time of such discounts, this defendant and the said Pierre C. Kane were both insolvent, and such facts were well known to said bank; and that said bank discounted the said acceptances entirely upon the faith and credit of the security so furnished by Mrs. Kane.
    “And this deponent.further says, that when he accepted the said several drafts, he relied upon the arrangement hereinbefore set forth to provide for their payment by Mr. and Mrs. Kane, and that if he now should be obliged to pay the same, he would be remediless in the premises; and he respectfully submits to this honorable court that, under the circumstances of this case, it would be inequitable and unjust to compel him to pay the said acceptances, or either of them, until after the said bank shall have first applied the securities, so as aforesaid placed in its hands, towards the payment thereof; and he therefore prays that, before final judgment shall be entered herein, the plaintiffs may be ordered to apply the said property, so placed in the hands of said bank, or the proceeds thereof, in payment of his said acceptances; or that he may have such other and further relief in the premises as shall be equitable and just.”
    The defendant moved to strike out this part of the answer as irrelevant and redundant.
    Upon that motion, the part of the answer above stated was struck out as irrelevant. The defendant appealed from the order.
    
      John JV*. Taylor, for the Appellant, argued—
    I. The answer is neither redundant nor irrelevant.
    II. ' The defendant is only a surety for Kane, the debtor; and the plaintiffs are bound to exhaust their remedy against the property of the debtor, placed in their hands for payment, before calling upon the surety. (Story Eq. (§ 638-641.)
    
      F. C. Bliss, for the Respondent.
    I. It is no defense that the bills were accepted for the accommodation of the drawer; not even if- the plaintiff had notice thereof when the bills were discounted, which, in this case, is not averred. Such an answer is held frivolous. (Pettigrew v. Chave, 2 Hilt. 546 ; Pierson et al. v. Boyd, 2 Duer, 33 ; Smith v. Knox, 3 Esp. 46 ; Bank of Ireland v. Beresford, 6 Dow. 237.)
    II. The defendant, as acceptor, stands in the same position as maker of a note.- If the plaintiffs took collateral security, they took it to protect themselves, and have a right to exhaust their remedy against those who stand to them in the relation of principal debtor before resorting to the collateral security. (Wright v. Simpson, 6 Vesey, 713 ; Hayes v. Ward, 4 Johns. Ch. 123 ; Schroeppell v. Shaw, 3 Comst. 446, and cases supra.)
    
    III. The defendant, as between him and the plaintiffs, is principal debtor, and not a surety. (DeZeng v. Phyfe, 1 Bosw. 336 ; Pierson v. Boyd, 2 Duer, 39 ; Dean v. Hall, 17 Wend. 214 ; Seabury v. Hungerford, 2 Hill, 80 ; Hall v. Newcomb, 3 Id. 233, and 7 Id. 416 ; Spies v. Gilmore, 1 Const, 324 ; Pearce v. Wilkins, 2 Id. 471.)
    IY. Matter in a pleading is irrelevant which has no bearing on the subject in controversy, and which cannot affect the decision of the court; and the test is, whether the averments tend to constitute a cause of action or defense. (Ingersoll v. Ingersoll, 1 Code R. 102 ; Fabricotti v. Saunitz, 1 Id. new series, 121 ; Averill v. Taylor, 5 How. Pr. R. 476 ; Martin v. Kanouse, 2 Abb. 330.)
    Y. Irrelevant or redundant matter may be struck out on motion. (Code, \ 160.)
   By the Court. Hoffman, J.

—By the answer, which is now under consideration, an accepted bill of exchange is sought to be freed from liability because the holder, who discounted it, had securities placed in his hands by the indorser, and is averred to have discounted the bill entirely on the faith and credit of such security. In other words, he would not have discounted it unless he had possessed such securities. There is not a word in this to show that he meant, much less agreed, to discount it, without having a right to resort to the acceptor. Proof of such an agreement would not be allowed. That the acceptance was an accommodation acceptance is unimportant. The liability is the same as if it had been based on funds. There is no equity whatever to compel the holder to suspend proceedings on this discounted acceptance until he has exhausted other securities in his possession. The case seems to us too clear to need further, argument, or the citation of any authorities.

The only question raised, which requires notice is, whether the motion to strike out was the appropriate remedy.

By section 152, sham and irrelevant defenses may be stricken out on motion.

I have always considered that irrelevancy in this and the 160th section meant the impertinency of the old Chancery system. That was, either prolixity or needless details of material matter, or something out of which no cause of action or defense could arise between the parties in the particular suit.

Cases of both classes are cited in 1 Hoffman’s Ch. Pr. 280-282. Beaumont v. Beaumont, (5 Mad. R. 51,) is a striking case of an answer, setting forth the details of prices and particulars in an auctioneer’s catalogue, certainly not immaterial, but clearly superfluous. Corbett v. Tottenham, (1 Ball & Beatty, 59,) is an instance of the other class. Lord Manners said, “I do not think the plaintiffs are bound either to reply to these charges in the defendant’s answer, or to go into evidence to disprove them, and, therefore, they ought not to remain on the record.”

This distinction is adverted to in Bowman v. Sheldon, (5 Sandf. Sup. Ct. R. 660.) In various cases, irrelevancy under the Code is treated as matter which does not tend to constitute a cause of action or defense; matter which, even if true, cannot affect the decision of the court in the case. (Stewart v. Bouton, 1 Code R., N. S. 404 ; Averil v. Taylor, Id. 213 ; Clark v. Harwood, 8 How. 470 ; Edgerton v. Smith, 3 Duer, 614.) . The 160th section appears to relate to cases in which, in the same pleading, or in a distinct separate part of a pleading, irrelevant matter is mingled with pertinent matter. Franklin v. Keeler, (4 Paige, 382,) furnishes an example of this.

But section 152 refers to an answer or a defense which, in its entirety, is either sham or irrelevant. I read the section thus: That a sham answer or defense, and an

irrelevant answer or defense, may be stricken out on motion. The received definition of a sham answer is its falsity. It may be material and pertinent, and yet be stricken out as sham. (The People v. McCumber, 18 N. Y. R. 316.) It need not, of course, be both sham and irrelevant.

The case of Kurtz v. McGuire, (5 Duer, 660,) is an example of one portion of an answer being stricken out as irrelevant where it would have constituted a cause of action, but could not be made available in that suit as a defense, not giving a right of set-off, and not constituting a counter-claim.

Slack v. Cotton, (2 E. D. Smith, 398,) is an instance of a distinct defense being stricken out as sham under the 152d section.

In Hecker v. Mitchell, (5 Abbott, 453,) there was a motion for judgment under section 247 on the ground of the frivolousness of the answer. But there were two defenses set up; one of which was, as pleaded, available; the other was frivolous. Mr. Justice Woodruff, while denying the motion as made for judgment, ordered the second defense to be stricken out, under the prayer for other relief.

The redress which a plaintiff can have under section 247 by a judgment for frivolousness can, of course, only be where every part of the answer is such.

The authorities referred to seem to show that the ability of the plaintiff to demur (under • section 153) to one or more of the defenses set up in an answer, does not preclude a motion under section 152. A motion for judgment Under section 247 is a summary demurrer to an answer in cases in which a demurrer will lie. And so the motion to strike out part of an answer may be regarded as a summary demurrer to that part, as giving a concurrent mode of relief.

Justice Harris, in Stewart v. Bouton, (1 Code R., N. S. 404,) says: “This motion to strike out irrelevant matter is analogous to a demurrer, and should be decided upon the same principle. If matter cannot be made the subject of a material issue, it should be struck out.”

There are authorities to show that a demurrer will not lie to irrelevancy in a pleading. But it will be found that they are cases in which irrelevant matter has been inserted in the statement of some substantative cause of action or defense with material matter. Such.was the case in Watson v. Husson, 1 Duer, 251, and Welch v. Hazelton, 14 How. 97. They do not, therefore, support the proposition that a demurrer would not lie in a case like the present, nor could such a proposition be sustained under the clear language of section 153. They leave the question, whether the motion under section 152 may not also be resorted to, unaffected.

The order should be affirmed.

Order affirmed with costs. .  