
    Ellen J. Bogardus, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Pleading in a negligence case—an answer may, after denying the allegations of the complaint, allege that the accident was due to the negligence of the plaintiff and not to that of the defendant — such allegation will not he stricken out as redundant —freedom from contributory negligence is to he proved, it need not he alleged.
    
    Where an answer interposed in an action to recover damages for personal injuries, after specifically denying the allegations of the complaint as to the defendant’s negligence and as to the plaintiff’s freedom from contributory negligence, 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 employees,” the affirmative allegation will not be stricken out as redundant.
    
      Semble, that the plaintiff in such an action need not allege in his complaint freedom from contributory negligence, but must prove it upon the trial.
    Appeal by the defendant, the Metropolitan Street Railway Company^ from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1901, striking out as redundant the 4th paragraph of the defendant’s answer.
    
      John T. little, for the appellant.
    
      James A. Douglas, for the 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 ány 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 4th 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 employees.”

The strict rules of common-law pleading left _ slight opportunity for immaterial allegations. (1 Chitty 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 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. Nat. Druggists' Assn. (30 App. Div. 508, 510) the court say: Ordinarily, however, a person should be left free to frame his own pleadings so far as the rules of good pleading will permit, and matter which is claimed to be irrelevant or 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. New York Central R. R. Co., 6 Lans. 381; Robinson v. N. Y. C. & H. R. R. R. Co., 65 Barb. 146; Lee v. Troy Citizens' Gas Light 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 preferred to 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 through the negligence and carelessness of the ¡plaintiff', without fault or negligence on the part of the defendant.

, It follows, therefore, that the order should be reversed, with ten •dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; "Hatch, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  