
    W. T. Hanson Company, Respondent, v. Peter F. Collier and Robert J. Collier, Appellants.
    Third Department,
    May 24, 1907.
    Practice — partial defense improperly pleaded — demurrer—libel.
    Facts which would constitute a partial defense if pleaded as such cannot be . stricken out as irrelevant .or redundant under section 545- of the Code of -Civil Procedure. The objection should be taken.by demurrer.
    Although scandalous matter.in the answer to a complaint for libel inserted solely to'insult the plaintiff maybe stricken out on motion, it will not be stricken out where the matter would be good as a partial defense if so pleaded.
    .. -Appeal by-the defendants, Peter F.. Collier and another, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county'of Schenectady On the 30th day of October, 1906, striking out the llth, 12th and 13th paragraphs of the defendants’ answer as irrelevant and redundant.
    
      John T. Fenlon {John V. Judge with him on the brief], for the appellants.
    
      James A. Van Voast {Fdwcvrd W. Hatch with him on brief, Frank B. Ohurch of counsel], for the respondent. ■'
   Kellogg, J.:

The action is for libel in publishing certain articles derogatory to the plaintiff’s “ pink pills for pale people.” The 10th paragraph of the answer is a denial of the allegations not admitted. The 11th paragraph begins, “ The above-named' defendants further answer ing said complaint, and for a second further answer and defense allege,” and the 11th, 12th ' and 13th paragraphs are evidently intended as one answer and défense. This answer' alleges facts' which, if stated as a partial, defense, would be held relevant and proper for that purpose. But, not being stated as a partial defense, it must be deemed as intended for a complete' defense, and is, therefore, clearly demurrable for insufficiency. A separate answer, which is subject to demurrer, cannot be stricken out in its entirety as irrelevant of redundant under section 545 of the Code of Civil Procedure. (Goodman v. Robb, 41 Hun, 605; Armstrong v. Phillips, 60 id. 243; Walter v. Fowler, 85 N. Y. 621; Nich. N. Y. Pr. § 922.)

Where scandalous matter has been inserted in an answer solely to insult the plaintiff and not to protect the defendant, the plaintiff is not required to admit the scandalous allegations by demurrer, but such answer, although alleged as a separate defense, may be stricken out as scandalous. " The necessity of the case makes this exception to the rule. (Armstrong v. Phillips, supra; Persch v. Weideman, 106 App. Div. 553.)

Uggla v. Brokaw (77 App. Div. 310), decided by' a divided court, does not impair the authority of the above cases. There certain answers were demurred to for insufficiency, and the demurrers were overruled for the reason that the answers did not allege new matter, but merely recited allegations pertinent' to the issue, but which might be shown under the general denial, and were, therefore, redundant, and the court thought there. should be a remedy by striking'out the redundant, matter. The question now under - consideration was not' squarely before the court. We cannot say whether the pleader intended the matter stricken out to be used by way of mitigation-or justification.- If properly alleged as a partial ' . defense, it was clearly relevant in mitigation of damagés. The pleader may have intended it as a justification.* It is unnecessary lipón this mptiori to determine whether the facts alleged are sufficient to constitute a justification or not.’ That matter should be ’ - determined upon demurrer, or in a proper way upon the trial. If demurrer is resorted to, and the defendant fails to sustain the answer, he may be allowed to aménd and allege the matter as a par- ■ tial defense, or to amplify it so as to.make it a justification. Much of the matter stricken out would be proper in a plea of justification, . and the answer may be said; to foreshadow an attempt to make that plea as well as a plea of matter in mitigation:. If the question is raised upon the trial the court may allow .the defendants to amplify and correct the allegations so as to allege in form what they have ’ -attempted to allege in substance. The matter alleged relates to the charge made against the defendants, arid is material to be shown to protect their rights. Whether it is alleged in- form and substance sufficient to form- a defense cannot, be determined by motiori,. but • may properly be considered upon a demurrer. A motion’to -strike out-an answer as irrelevant is not concurrent with the right to demur.for insufficiency or the right to question the süfficíeücy of the pleading at the trial. ( Walter v. Fowler, supra)

The argument of counsel has been directed to sustaining or overthrowing the order as an eiitirety. The court does not, therefore, ' feel called upon to determine whether certain parts of the matter stricken out might properly be stricken out as irrelevant to the issuri attempted td be raised by the answer. The order appealed from is, therefore, reversed, with costs, and the motion'is'denied, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements* and' motion denied, with ten dollars costs»  