
    First Appellate Department,
    January, 1904.
    Reported. 91 App. Div. 612.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent, v. Mary E. Higgins, Appellant, Impleaded with The Fidelity and Casualty Company of New York.
    
      Edward Miehling, for appellant.
    The words in the “ sixth ” paragraph of the complaint “ did suffer and permit the premises to become disorderly ” state a conclusion and should be stricken out. (Code of Civil Procedure, § 481.) The retention of such paragraph will prejudice the defendant upon the trial. (Rockwell v. Day, 84 App. Div. 437; Hilton v. Carr, 40 App. Div. 490; Nealis v. Lissner, 24 N. Y. St. Rep. 196.)
    
      Herbert H. Kellogg, for respondent.
    Paragraph “ sixth ” is not irrelevant, immaterial or redundant; a bill of particulars could have been demanded. (Lyman v. Plymouth Social Club, N. Y. L. J. May 6,1898; Finger v. City of Kingston, 29 N. Y. St. Rep. 703; Baer v. Seymour, 12 N. Y. St. Rep. 166; Duprat v. Havemeyer, 18 Weekly Digest, 439; Bradner v. Faulkner, 93 N. Y. 515; Allen v. Allen, 19 Weekly Digest, 212; Prescott v. Tousey, 53 N. Y. Supp. 56.) Walton v. Fowler, 85 N. Y. 621 holds that where there is a semblance of a cause of action set up in a pleading, its sufficiency cannot be determined upon a motion to strike out as redundant or irrelevant. The allegation is sufficient to set forth a violation of one of the conditions of the bond. (People ex rel. Meakim v. Eckman, 63 Hun, 209; Davan v. Dinsmore, 33 Barb. 86; Averill v. Taylor, 5 How. Pr. 476; Quintard v. Newton, 5 Robt. 72; Follett v. Jewett, 11 N. Y. Leg. Obs. 193.) Defendant’s relief, if any, is to move for bill of particulars. (Code Civil Pro. § 531; Matthews v. Hubbard, 47 N. Y. 428.) The right to appeal was lost by serving an answer. (Goch v. Marsh, 8 How. Pr. 439; Williams v. Folsom, 32 N. Y. St. Rep. 455; Wood v. Richardson, 91 Hun, 332; Prentiss v. Bowden, 14 Misc. 185; Logelling v. N. Y. El. Ry. Co., 5 App. Div. 198; Radway v. Graham, 4 Abb. Pr. 468; Knapp v. Browne, 45 N. Y. 207.) In the motion to strike out there is no affidavit showing how defendant will be injured by the retention of this paragraph. (Code Civil Pro. § 545; Lugan v. Byrnes, 15 N. Y. St. Rep. 970; Finger v. City of Kingston, 29 N. Y. St. Rep. 703; Baer v. Seymour, 12 N. Y. St. Rep. 166; Homan v. Byrnes, 14 Weekly Digest, 175.)
   Order affirmed, with ten dollars costs and disbursements.

No opinion.  