
    BOGARDUS v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    June 21, 1901.)
    Negligence—Pleading—Answer—Contributory Negligence—Striking.
    Where, in an action against a street railroad for injuries, the answer denied negligence on the part of defendant, and alleged that plaintiff had been guilty of contributory negligence, the striking out of the allegation of contributory negligence was not authorized by Code Civ. Proc. § 545, declaring that irrelevant and redundant matter may be stricken on motion of the party aggrieved thereby, since, while the allegation was not essential, it could not prejudice plaintiff.
    Appeal from special term, New York couuty.
    Action by Ellen J. Bogardus against the Metropolitan Street-Railway Company. From an order striking out a paragraph of the answer, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, PATTERSON, and LAUGHLIN, JJ.
    
      John T. Little, for appellant.
    James A. Douglas, for respondent.
   LAUGHLIN, J.

The complaint alleges that plaintiff was a passenger on one of defendant’s cars, and that while she was alighting therefrom, “without any fault, carelessness, or negligence on her part,” the defendant negligently started the car, precipitating her upon the ground and inflicting injuries, to recover damages for which this action is brought. The answer denies specifically these allegations of the complaint, and then, in the fourth paragraph, alleges affirmatively that “whatever damages and injuries were sustained by the plaintiff at the time and place mentioned in the complaint were due to the negligence of the plaintiff, and were not the result of any negligence on the part of this defendant, its agents, servants, or employés.” The strict rules of common-law pleading left slight opportunity for immaterial allegations. 1 Chit. Pl. *252. The practice of striking out immaterial allegations as “impertinent” was more common in the court of chancery. Story, Eq. Pl. § 863. When the Code of Procedure supplanted the common-law and chancery practice, it was expressly provided that irrelevant and redundant matter might be stricken out on motion of the “person aggrieved thereby.” Code Civ. Proc. § 160. This provision was continued in section 545 of the Code of Civil Procedure. The requisites of an answer are prescribed in section 500 of the Code of Civil Procedure, and it may be conceded that the matter stricken out by the order appealed from was not essential. It does not follow, however, that a pleader has no discretion in formulating his defense. In Park & Sons Co. v. National Wholesale Druggists’ Ass’n, 30 App. Div. 508-510, 52 N. Y. Supp. 475, 476, the court say:

“Ordinarily, however, a person should be left free to frame his own pleading so far as the rules of good pleading will permit, and matter which is claimed to be irrelevant and redundant should be stricken out only when the moving party is actually aggrieved by it. The irrelevancy must be clear, and the redundancy unquestioned, before the portions complained of will be eliminated.”

Tested by these criteria, the allegations in question should not have been stricken out. They can in no manner prejudice the plaintiff. If these allegations constituted an affirmative defense, they would be expressly authorized by the Code. While it is well settled that in negligence cases the burden is upon the plaintiff to show that the injuries complained of were caused solely by the negligence of the defendant, and this requires proof showing freedom from contributory negligence on the part of the plaintiff, yet it is not incumbent upon the plaintiff to affirmatively allege freedom from contributory negligence. Hackford v. Railroad Co., 6 Lans. 381; Robinson v. Railroad Co., 65 Barb. 146; Lee v. Gaslight Co., 98 N. Y. 115. The practice of inserting such allegations in the answer doubtless originated owing to the fact that it was unnecessary for the plaintiff to affirmatively allege freedom from contributory negligence, and at a time when it had not been definitely settled whether or not contributory negligence was an affirmative defense. Inasmuch as the pleadings are before the court, and may be referred by counsel during the trial and in summing up, without being offered in evidence, there is no propriety in disturbing the general practice of allowing a defendant in a negligence case to account for the accident, where it may be done truthfully, by alleging that it was caused thronah the negligence and carelessness of the plaintiff, without fault oi negligence on the part of the defendant.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion, denied, with $10 costs. All concur; HATCH, J., in result.  