
    Fabbricotti v. Launitz.
    Matter is irrelevant or redundant in a pleading, which, found in connexion with pertinent allegations, has no bearing on the subject matter of the controversy, and cannot affect the decision of the cause.
    If the whole pleading, e. g. an answer is no defence, it is insufficient, and may be demurred to. It is not irrelevant, within the meaning of the code.
    If it be a sham answer, it may be stricken out on motion under a different section of the code, ( § 152.) 
    
    In an action by the payee to recover a note given for the price of goods sold, the defendant may recover his damages occasioned by the non-delivery of the goods by the seller at the time stipulated.
    
      He is not precluded;, by the fact that he has commenced a suit against the seller, from recovering such damages.
    But he will be compelled to elect, between his own suit and the recoupment claimed ; and if he elect the latter, his suit will be stayed.
    June 7th, 1851.
    The plaintiff sued upon two promissory notes, drawn in his favor by the defendant.
    The defendant in his answer admitted the mating of the notes, bnfc stated that they were given in part payment for marble, which the plaintiff, by a written agreement, engaged to deliver to him at certain times therein specified ; that the defendant is a sculptor, and was employed by the state of Kentucky to execute a piece of statuary, on or before a certain day, under heavy penalties ; that the plaintiff well knew the fact of the defendant’s having been employed by the state of Kentucky, and that the marble was selected by him for the purpose of such statuary; that by reason of the plaintiff’s want of punctuality, he, the defendant, liad sustained great loss and damage, the particulars of which are stated in the answer. And he claimed to recover damages against the claim made on the notes. It also appeared from the answer, that the defendant had commenced an action against the plaintiff for the same damages set up in the answer.
    A motion was now made on behalf of the plaintiff, to strike out the whole of the answer, excepting that part which admitted the making of the notes, as irrelevant and redundant under the one hundred and sixtieth section of the code. Three justices of the court concurred in the decision.
    
      S, L. If. Barlow, for the plaintiff,
    
      W. Packard, tor the defendants.
    
      
      
         See Brown v. Jenison, ante, page 732.
    
   Mason, J.

This motion proceeds on a misapprehension of the meaning of the word “irrelevant,*’ as used in the 160 th section of the code. Matter is irrelevant in a pleading which, lias no bearing on the subject matter of the controversy, and cannot affect the decision of the court. But it is implied that independently of the irrelevant matter, the plaintiff has stated no suffi-eíent canse oí action or the defendant a valid defence, If the complaint does not state a case on which, if uncontradicted, the plaintiff has a right to recover, the defendant must present his objection by demurrer, and not by motion to strike out the complaint as irrelevant, and the same rule is applicable to an answer. If the whole matter of the answer is no defence to the plaintiff’s claim, the answer is insufficient and not irrelevant, in the meaning of the code. The objection in such case is, not that unimportant matter, or matter having no bearing on the controversy, is mixed up with, or stated in addition to that which is material, but that the whole is entirely unavailing, and this objection can only be taken by demurrer, unless the answer is a sham answer, and then by section 152, it may be stricken out on motion. It is true, that under the old chancery system, a plaintiff might except to the answer for impertinence, when he considered that the matter set up was no defence to the case stated by the bill. But that was allowed because a demurrer could not be interposed to an answer, and the plaintiff could in no other way obtain the opinion of the court as to the materiality of such matter, until the court came to a hearing on the pleadings or on the pleadings and proofs, But under the code, a demurrer is allowed to an answer, as well as to a complaint. The plaintiff in this case, therefore, should have demurred to the answer, instead of applying to strike it out as irrelevant.

It must not be inferred, however, that a demurrer would be sustained to this answer. The defendant certainly has a right to recoup in damages, against the plaintiff’s claim, by reason of the marble not having been delivered in proper season; and if be has set forth sufficient facts to entitle him to recover, a demurrer to the answer would be overruled. I fully agree with the rule laid down in Britton v. Turner, (6 New Hampsh, 481,) that a defendant cannot recover and also have a cross action for the same matter. But the mere fact of his having commenced an action for damages, which has not proceeded to trial or judgment, is not necessarily a bar to his setting up the same matter in the answer by way of recoupment. Circumstances may occur after the commencement of such an action, which render it ineffectual, and the setting up of his damages in this way in an answer to a claim for non-payment of the' moneys stipulated in the contract, may be the only effectual mode in which he may be able to obtain compensation for the damages sustained by the failure on the part of, the plaintiff

The affidavit of the defendant on this motion is designed to present such a state of facts. It states that he is fearful lest by reason of the plaintiff’s contemplated removal from the county, he may not be able to collect any sum which he may recover in the action he has instituted for damages. He ought not, therefore, to be prevented from reducing or defeating the plaintiff’s recovery against him in this suit, by way of recoupment of damages.

But he may be put to his election, either to proceed in the suit he has instituted, or to confine himself to his recoupment in the present action. If he elect the former, then he may be prohibited from setting up the same matter in this suit; if the latter, then the proceedings in the former action may be stayed. At any rate, the plaintiff in this action is at liberty to make such a motion on proper affidavits as he may be advised.

The present motion, however, must be denied, but without costs, as the point is new, and involved in some uncertainty.  