
    William R. Stewart et al., Respondents, v. Paul C. Forst, Appellant.
    (City Court of New York — General Term,
    February, 1896.)
    1. Pleading -^Scandalous, irrelevant or redundant.
    A motion to strike out matter from an answer as scandalous, irrelevant and redundant must be decided upon the pleading itself.
    2. Landlord and tenant — Eviction—Evidence.
    A defense of eviction from a flat in an apartment house by reason of the landlord’s maintaining a' disorderly house in and about the premises demised to the defendant is not insufficient in law, and under it evidence of such fact is admissible, although such disorderly house was maintained in other parts of the’building, as the landlord of such a building retains control of the hallways and staircases.
    Appeal by defendant from order striking out his alleged second separate defense as scandalous, irrelevant and ■redundant.
    
      Joel Krone, for appellant.
    
      Bowers & Sands, for respondents.
   Van Wyck, Ch. J.

The landlords, plaintiffs, sue for unpaid rent of the first flat of an apartment house, and the tenant, defendant, sets up as .his second separate and distinct defense that he was evicted by plaintiffs’ maintaining a disorderly house in and about the premises mentioned in the complaint and demised to him.

The plaintiffs, upon an affidavit of their agent denying the maintenance of such disorderly house and the pleadings, moved to strike from the answer this alleged defense upon the ground that it was scandalous, irrelevant and redundant; Tut such a motion must stand or fall upon the pleadings, and the rulings upon the evidence under the pleading as limited by the bill of particulars must be left for the judge at trial.

This alleged defense is not insufficient in law, and under the same, even as limited by the bill of particulars, defendant may offer evidence which must be admitted, even though the disorderly house was not maintained in the fiat demised to defendant, for it mnst be remembered that of an' apartment house the landlord retains control of the hallways, and stair- ' cases. The order must be reversed, with costs, and the. motion denied, with ten dollars costs.

McCarthy, J"., concurs.

Order, reversed, with costs, and motion deniéd, with .ten dollars costs.  