
    Morgan Jones et al., App’lts, v. Joseph M. Hawes et al. and Adelaide Jones, Resp’ts.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed March, 1889.)
    
    Pleading—Motion to strike matter out of answer for irrelevancy —When not granted—Ejectment.
    In an action of ejectment, by heirs of a grantor, for the benefit of his grantee, against persons holding adversely to the grantor, one of the heirs, being a minor over fourteen years of age, was made defendant. Her answer, by guardian ad litem,, admitted that the defendants, other than herself, were holding adversely to plaintiffs and herself, but alleged that the alleged deed to the grantor had been obtained by fraud, and was void, and in her prayer for relief asked that the deed might be cancelled and that she and plaintiffs might recover the lands as tenants in common. Held, that the new matter in the answer being relevant to the position taken by defendant, though that position may not have been correct, could not be stricken out as irrelevant.
    
      Appeal from an order of special term denying plaintiffs’ motion to strike out portions of the answer as irrelevant.
    Action of ejectment brought by Morgan Jones and others, as heirs of John Jones, deceased, against Joseph H. Hawes and others, and Adelaide Jones, to recover land held by the defendants, except Adelaide Jones, adversely to plaintiffs. Plaintiffs sued as the heirs of John Jones, deceased, for the benefit of Morgan Jones, to whom the deceased had conveyed the land. Adelaide Jones was also an heir of John Jones, deceased, but, being a minor over fourteen years of age, and refusing to have a guardian appointed, she was made a defendant. Her guardian ad litem filed an answer alleging her infancy, and admitting the possession of the defendants adversely to herself and the plaintiffs; and alleged that at the time of the so called conveyance to Morgan Jones, the deceased was of unsound' mind, and that if he executed said conveyance, it was obtained by fraud, and void, and in her prayer she asked that the deed be cancelled, and that plaintiffs and this defendant recover the land for their own benefit from the defendants.
    
      T. B. Clarkson, for app’lts; D. B. Ogden, for resp’ts.
   Sedgwick, Ch. J.

I am of opinion that the learned judge below did not err in refusing to strike out the allegations of the answer as irrelevant. They were not irrelevant to the position taken by the defendant, either as a defense or by way of counter-claim. Her position may not have been correct. That could not be determined against her, on the motion to strike out matter as irrelevant.

The order should be affirmed, with costs.

Truax, J., concurs.  