
    Charles Uggla, Appellant, v. Isaac V. Brokaw, Respondent.
    
      Demurrer does not lie to an answer containing a denial and new matter — redundant matter merely is not demurrable—a motion to strike out an entire count as redundant is proper—a separate defense setting up new matter p'ovable under preceding denials is not demurrable — allegations as to injury from material falling from a building.
    
    Where a defense set forth in an answer contains new matter and denials of material allegations of the complaint, such denials may be stricken out upon motion, if the plaintiff is aggrieved thereby, but so long as they remain, a ■demurrer will not lie to the defense even though the other matter pleaded therein does not constitute a defense.
    A demurrer will not lie to a count in an answer pleaded as a separate defense on the ground that the matter alleged therein is redundant, where such matter, if true, will defeat the action.
    The power of the court to strike out matter as irrelevant or redundant extends to an entire count pleaded as a separate defense or counterclaim.
    
      Quaere, whether the authority to strike out irrelevant or redundant matter contained in a pleading is derived from the inherent power of the court or from section 545 of the Code of Civil Procedure.
    'The complaint, in an action to recover damages for personal injuries, alleged that the defendant was the owner of a certain building and that, while the plaintiff was driving along a public street in front of such building, he was struck by 'material which blew from the roof thereof. The answer admitted that the ■defendant owned the reversion of the premises, but denied that he owned the present existing estate therein or that he had possession, occupancy or control of the same, and put in issue the other material allegations of the complaint. The answer also set forth several separate defenses, to the second, third, fourth, fifth ■and sixth of which the plaintiff demurred upon the ground that they were insufficient upon the face thereof. Each of such defenses reiterated the admissions and denials contained in the preceding part of the answer, and all of them, except the sixth defense, contained the allegation that the defendant ¿never had knowledge or notice of any defect or weakness in the construction •of the building or any part thereof.
    In the second defense it was alleged that for many years prior to the accident the building described in the complaint was properly and safely constructed, of the best material, by skilled and competent persons, and that it was in the exclusive occupation, care, custody and control of a tenant for years continuously thereafter.
    In the third defense it was alleged that the building was erected by a tenant for years, who was in the exclusive occupation, care, custody and control of the premises at the time and so continued for many years thereafter and down to the time of the accident.
    In the fourth defense it was alleged that the preparation of the plans for the construction of the building was delegated to a competent and skilled architect and engineers, and that both the defendant and his tenant relied upon such architect and engineers and were not skilled or informed in matters relating to the construction of such structures; that such architect and engineers superintended the construction and inspection of the work and materials, and that the only interference on the part of the defendant or his tenant was the signing of the contract by the tenant; that the work was delegated to competent independent contractors who undertook to supply the best materials and most skilled and careful labor.
    In the fifth defense it was alleged that the accident was the direct result of “vis major in that a hurricane of extraordinary violence unseated from reasonably secure fastenings the materials which injured the plaintiff,” and that this result was not produced or contributed to by any faulty or defective construction.
    In the sixth defense it was alleged that the injuries were caused solely through the negligence of the plaintiff.
    
      Held, that the demurrer was properly overruled;
    That, as each of the separate defenses contained denials of material allegations of the complaint, a demurrer would not lie thereto even though the other matter pleaded did not constitute a defense;
    That the matter set forth in the several separate defenses would, if true, defeat a recovery; that the fact that none of such defenses contained any new matter, but consisted solely of matter provable under the preceding denials contained in the complaint, did not render them demurrable;
    That the remedy of the plaintiff was by a motion to strike out the irrelevant or redundant matter even though such matter included the entire separate defense.
    Ingraham: and Hatch, JJ., dissented on the ground that the facts set forth in the fourth defense did not constitute a defense to the action.
    Appeal by the plaintiff, Charles Uggla, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of blew York on the 28th day of April, 1902, upon the decision of the court, rendered after a trial at the blew York Special Term, overruling the plaintiff’s demurrer to the second, third, fourth, fifth and sixth separate defenses contained in the defendant’s answer, which demurrers were interposed upon the ground of the insufficiency of such defenses upon the face thereof.
    
      Flamen B. Oandler, for the appellant.
    
      Alfred G. Beeves, for the respondent.
   Latjghlin, J.:

The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. It is alleged that the defendant was the owner of the building No. 524 Fifth avenue known as Sherry’s; that there were negligently erected and standing on the roof of the building “ divers structures ” constructed of brick and mortar and inclosed by roofs of metal and glass; that these structures were insecurely fastened; that the bricks were improperly laid with a poor and inferior quality of cement or mortar, so that the roofs and bricks of the structures were in an unstable and dangerous condition and liable to be blown off into the roadway of Fifth avenue; that through the carelessness and negligence of the defendant, who had notice of this dangerous condition, “ the roofs of the said structures or one of them and divers bricks, mortar and other building material used in the construction of the said structures or one of them, during .a storm of wind and rain, were blown from the roof of the said building ” into the roadway of Fifth avenue and upon the plaintiff, who was driving by, inflicting the injuries to recover for which the action is brought.

The answer admits that the defendant is the owner in fee of the reversion, but denies that he is the owner of the present existing estate in said premises or that he has possession, occupancy or control of the same, and puts in issue the other material allegations of the complaint.

Each of the defenses to which the demurrer relates is pleaded as a further and separate defense, and the first subdivision of each recites that the defendant reiterates and repeats the allegations ” in that part of the answer preceding the separate defenses, specifying each paragraph thereof, which includes both admissions and denials; and all, except the sixth, contain the allegation that the defendant never had knowledge or notice of any defect or weakness in the construction of the building or any part thereof. In the second defense it is alleged that for many years prior to the accident the building described in the complaint was properly and safely constructed by skilled and competent persons and of the best material, and was in a safe and secure condition, and that it was in the exclusive occupation, care and custody and control of a tenant for years continuously thereafter. In the third defense it is alleged that the building was • erected by a tenant for years, who was in the exclusive occupation, care, custody and control of the premises at

the time, and so continued for many years thereafter, and down to the time of the accident. In the fourth defense it is alleged that the preparation of plans for the construction of the building was delegated to a competent and skilled architect and engineers; that' both this defendant and his tenant fully relied on such architect and engineers and were not skilled and informed in matters relating to the safety of construction of such structures'; that such architect and engineers superintended the construction and inspection of the work and materials, and that the only interference on the part of this defendant or his tenant was the signing of the contract by the tenant; that the work was delegated to competent, independent contractors, who undertook to supply the best materials and most skilled and careful labor. In the fifth defense it is alleged that the accident was the direct result of “ vis major in that a hurricane of extraordinary violence unseated from reasonably secure fastenings the materials which injured the plaintiff,” and that this result was not produced or contributed to by any faulty or defective construction. In the sixth defense it is alleged that the injuries were solely caused through the negligence of the plaintiff.

Each of these defenses contains denials of material allegations of the complaint, and, while such denials might have been stricken out upon motion if the plaintiff were aggrieved thereby (Code Civ. Proc. § 545 ; Flechter v. Jones, 64 Hun, 275 ; State of South Dakota v. McChesney, 87 id. 293 ; Stieffel v. Tolhurst, 55 App. Div. 532), yet so long as they thus remain a demurrer will not lie, even though the other matter pleaded does not constitute a defense., (Flechter v. Jones, supra ; Stieffel v. Tolhurst, supra ; Holmes v. Northern Pacific Railway Co., 65 App. Div. 49 ; Wintringham v. Whitney, 1 id. 219.)

But there is another reason why demurrer will not lie in this case. It is not seriously contended that the matters set up in each of these defenses, if true, will not constitute a defense to the action; and it is quite clear that if they be established the plaintiff cannot succeed. The principal, if not the sole contention of the plaintiff is that none of these defenses contains new matter, but that all are provable under the preceding denials, which is undoubtedly true. It does not follow, however, that the defenses are insufficient in law upon the face thereof. The Code provides that the answer may contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or a statement of any new matter constituting a defense or counterclaim, without repetition (Code Oiv. Proc. § 500); but a demurrer is only authorized “ to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof.” (Code Oiv. Proc. § 494.) Inasmuch as the matters set up in these several defenses are not extrinsic to the matters set up in the complaint as the basis of the cause of action, they are not “new matter.” (Manning v. Winter, 7 Hun, 482.) Where a pleading contains matters not authorized in such a pleading, so that it cannot be made a material issue, it may, if a party be aggrieved thereby, be stricken out by the court upon motion. (Eidlitz v. Rothschild, 87 Hun, 243; Frank Brewing Co. v. Hammersen, 22 App. Div. 475 ; Rensselaer & Washington Plank Road Co. v. Wetsel, 6 How. Pr. 68.) There seems to be some confusion in the decisions as to whether this authority is derived from section 545 of the Code, which authorizes the striking out of irrelevant, redundant or scandalous matter contained in a pleading, “ upon the motion of a person aggrieved thereby,” or whether it is founded upon the inherent power of the court. It is not essential that we should determine whether the power to strike it out is inherent or expressly conferred; but it may be observed that matter which can have no bearing on the issues, either on account of its manifest irrelevancy or because the law declares that it cannot be introduced, would seem to be irrelevant; and if it be a repetition of matter already at issue by other parts of the pleading, it would be surplus-age and would fall under the authority to strike out redundant matter. It is contended, however, that this authority .to strike out matter as irrelevant or redundant does not extend to an entire count pleaded as a separate defense or counterclaim. The case of Walter v. Fowler (85N. Y. 621) is cited as authority for this proposition. We think the Court of Appeals did not so hold in that case. There an attempt was made to set up a counterclaim and a motion was made to strike it out; and the court held that it contained a semblance of a cause of action, and that while its sufficiency might be tested by demurrer, it could not be by motion. In Goodman v. Robb (41 Hun, 605) the court did say that “ an entire -count cannot be stricken out as irrelevant or redundant; ” but the matter there under consideration was neither irrelevant nor redundant, and it was not a motion to strike out matter as irrelevant or redundant. It is also stated in the opinion ih that case that irrelevant and redundant matter cannot be demurred to, but the objection must be taken by a motion to strike out.” The only point necessarily decided in that case, however, was that the sufficiency of a count of relevant matter could not be determined by motion. We think a demurrer will not lie to a count of an answer pleaded as a separate defense on the ground of redundancy, where the matter thus pleaded as a defense, if true, will defeat the action. In the case at bar the matter is redundant; but since if true it will bar a recovery, we think it cannot be said that the defense, whether consisting of new matter or not, is insufficient in law upon the face thereof, which, as has been seen, is the only ground upon which a demurrer is authorized by the Code. (Wiley v. Village of Rouse's Point, 86 Hun, 495; Flechter v. Jones, supra; Holmes v. Northern Pacific Railway Co., supra ; Moak’s Van Sant. Pl. 771.)

In the case of Bogardus v. Metropolitan St. Ry. Co. (62 App. Div. 376), which was an action for personal injuries, we held that the plaintiff was not aggrieved by an allegation in the answer setting up that the accident occurred through his contributory negligence and without negligence on the part of the defendant, and that his motion to strike this out as irrelevant or redundant should be denied. The reasons for that decision do not apply to any of the counts of this answer except the last, and we do not intend to express any opinion as to whether the other counts of the answer are so unnecessary and of such a character that the court would be justified in striking them out as redundant. There should be, and we think there is, a remedy by motion for striking out redundant matter, even in those cases where it embraces an entire count pleaded as a separate defense. Recourse may and should be had to this remedy where there has been a departure from the usual practice to the prejudice of the adverse party by unduly lengthening a pleading or otherwise confusing or obscuring the issues.

It follows that the interlocutory judgment should be affirmed, with costs.

Patterson and O’Brien, JJ., concurred.

Ingraham, J.:

I concur in the conclusion of Mr. Justice Laughlin, except as to the fourth defense. I do not think, however, that where new matter is pleaded as a separate defense to the action, and there are repeated as a part of that defense denials of allegations of the complaint which have no relation to the new matter pleaded, the court is prevented from determining upon demurrer whether the separate defense as a whole is sufficient in law upon the face thereof. Each separate defense must be taken as a whole, and if the facts alleged are not sufficient as a separate defense, as distinguished from a denial of allegations alleged in the complaint, then a demurrer to that separate defense should be sustained, although as a part of that defense material allegations of the complaint are denied. I agree with Mr. Justice Laughlin, however, that as to each of the defenses, except the fourth, the facts as alleged constitute a defense to the action. By the fourth defense the defendant, by realleging allegations in paragraphs 1 to 5 of the answer, admits that he is the owner of the building, and then alleges that the planning, erection and construction of the building described in the complaint was fully and fairly committed to competent and skilled architects and engineers, qualified for such work, under instructions to plan and erect a thoroughly safe and substantial structure; that the defendant was not skilled or informed in said matters, and entire reliance was placed in said architects and engineers in all matters pertaining to the preparations of plans and specifications, and to the superintendence and inspection of said work and construction and materials; that the defendant did not interfere with the said architect or engineer in the discharge of their duties; that the work of constructing-said building was intrusted to independent contractors who were skilled and competent persons qualified for such work and had contracted to supply the best materials and the most skillful and careful labor, and to do all to the satisfaction of the architects and engineers, and that the defendant never had any knowledge or notice of any defect in the construction or condition of said building. The plaintiff was injured while in Fifth avenue in the city of New York, a public street, by the fall of brick, mortar and other building materials from the building which the plaintiff owned. In such case the rule res ipsa loquitur applies, and from the incident itself the jury are authorized to infer negligence. I know of no principle by which the owner of a building upon a public street is as a matter of law relieved from liability for injury to persons lawfully upon the street caused by the faulty construction of the building because he has selected architects or contractors to construct the building and relied upon their skill and diligence to make the building safe. Where the accident happened because of negligence of an employee of a contractor engaged in erecting a building, the building itself being properly and securely constructed, the contractors would be alone liable; but where the accident is occasioned by the faulty construction of the building, so that after it is erected it is unsafe, and falls into the street, injuring a person rightfully there, I do not understand that the owner of the building can as a matter of law be relieved from responsibility for the insecure and unsafe building because he had employed competent architects or contractors to plan and perform the work of constructing it.

I think, therefore, that this separate defense was insufficient and that as to that defense the demurrer should have been sustained.

Hatch, J., concurred.

Judgment affirmed, with costs.  