
    KEEGAN v. SAGE.
    
      N. Y. Common Pleas, Special Term;
    
    
      September, 1893.
    
      Pleading ; 7710U077. to strike out.\ Where a complaint for breach of promise to marry alleges plaintiff’s chastity, a paragraph in the answer denying such allegation, and affirmatively asserting plaintiff’s profligacy, and that in consequence she had been' repeatedly committed by police magistrates, and had sought to. mask her identity under aliases, cannot be stricken out as irrelevant, redundant and scandalous ; since defendant was entitled to traverse the allegations of the complaint, and the allegations, as to plaintiff’s misconduct were in substance relevant in mitigation of damages, though they had not been properly pleaded in form as a partial defense.
    
      Motion to strike out a portion of answer as irrelevant, redundant and scandalous.
    Action for breach of promise by Delia Keegan against Russell Sage.
    The further facts are fully stated in the opinion.
    
      J. Baptist Marshall, for the motion.
    
      Edward C. James, opposed.
   Pryor, J.

In a complaint for breach of promise the plaintiff says that “ she was and ever had been chaste and a virgin.” The defendant denies the allegation, and asserts affirmatively that she has led a profligate life. The paragraph containing this portion of the answer the plaintiff moves to strike out as irrelevant, redundant and scandalous.

Obviously, if the allegation in the complaint be material, a denial of it can be neither irrelevant, redundant nor scandalous (Dovan v. Dinsmore, 33 Barb. 86). On the other hand, if the allegation be immaterial, its insertion in the complaint entitles the defendant to traverse it by responsive allegations (McIntyre v. Ogden, 17 Hun, 604).

But defendant, not content with putting in issue the virtuous conduct of the plaintiff, proceeds to state that, in consequence of her profligacy, she has been repeatedly committed by police magistrates, and has sought to mask her identity under a variety of aliases.

Misconduct of the plaintiff subsequent to the engagement of marriage is a relevant fact in mitigation of damages (Button v. McCauley, 1 Abb. Ct. App. Dec. 282). But? to be available, the matter of mitigation must be pleaded (Code, § 536); and must be expressly stated as a partial' defense {Code, § 508). Here the matter is not so pleaded, but is alleged generally in answer to the action. Its sufficiency in form, however, cannot be tested upon this motion (Code, § 508; Struver v. Ocean Ins. Co., 2 Hilton, 475; Dovan v. Dinsmore, 33 Barb. 86, 87).

The question then is, whether, in substance, the matter pleaded be effectual in mitigation of damages. In other words, does it charge the plaintiff with such misconduct as shows her to be “ an unfit companion in married life ” (1 Abb. Ct. App. Dec. 284) ? In effect, the allegations are, that, by reason of her profligate life, she was committed to prison, and that to elude justice she disguised herself under fictitious names. This, to be sure, is matter of mitigation.

If otherwise, however, the denial of the allegation in the complaint is good pleading, and its presence saves the entire paragraph from suppression—which is the express object of the motion.

The matter objected to being relevant upon the question of damages cannot be scandalous (Story Eq. Pleading, % 270).

Plaintiff’s affidavit makes no case for a bill of particulars.

Motion'denied ; costs to abide the event. 
      
      It is the better opinion that the effect of the provision of § 508. of the Code of Civil Procedure allowing partial defenses to be pleaded, if expressly stated to be partial, is gimply to abrogate the common law rule that a partial defense raised no issue, but requirbd defendant to submit to an assessment of damages before a sheriff’s!. jury or' by referee, and that it does not impair the right of a defendant who does raise an issue by denial and get to trial, to disprove by way of mitigation, anything that plaintiff has alleged (See Abb. Brief on Pl. 634).
     