
    FASNACHT against STEHN.
    
      Supreme Court ; General Term,
    
    
      January, 1869.
    Pleading.—Irrelevant and Redundant Matter.— ■ Trial by Judge.—Waiver.
    
      It seems, that section 152 of the code of procedure,—providing that sham and irrelevant answers maybe stricken out,—does not authorize the striking out the whole or part of an answer as redundant: The first clause of section 160 of the Code,—under which irrelevant or redundant matter in the pleading may be stricken out,—does not authorize an entire answer or an entire defense to be stricken out as irrelevant or redundant.
    In an action on a foreign judgment, matters of defense alleging fraud in the obtaining of that judgment, even if conceded to be frivolous, cannot be held irrelevant, so as to be stricken out under section 152 of the Code.
    Where the issue formed by the first defense in an answer, amounts to a plea of nul tiel record, it is improper for such issue to be tried by a judge on a motion for judgment; for it is an issue of fact to be tried by a jury.
    The circumstance that a defendant excepts to a finding of facts and to conclusions of law by a judge, does not amount to a waiver of a trial by a jury, or estop him, on appeal, from taking the ground that the trial by the judge at chambers was irregular.
    Appeal from an order and judgment.
    
      This action was "brought on a judgment recovered by the plaintiffs against the defendant, in the sixth district court of New Orleans, Louisiana, on the 19th December, 1863, for $4,230.10, with interest and costs of suit; which recovery was by way of counter-claim, or, as it is styled in the civil code of Lousiana, of “ demand in reconvention” ; the recovery being in favor of the defendants in that action (the plaintiffs in this), and against the defendant in this action, who was the plaintiff in that.
    The complaint averred the recovery and judgment, in due form.
    The answer of the defendant sets up three defenses : First.—He admits that he commenced the action in New Orleans, and that answers in reconvention were put in; but he denies that he was duly served with process from the court summoning him to comply with the demand in the answer, and he denies knowledge or information as to the judgment.
    Second.—He sets up the facts as he claims them to be, on the merits of the action in Lousiana, and avers that if any such judgment was recovered against him as alleged in the complaint, it was obtained in pursuance of a fraudulent scheme on the part of the plaintiffs, conspiring with one J. H. Pain ; and that by reason of the premises the said supposed judgment is a fraud upon the defendant, and is null and void as against him.
    Third.—By way of counter-claim he asks for an injunction, perpetually-enjoining the plaintiffs from prosecuting or in any way enforcing against the defendant the judgment mentioned in the complaint.
    Thereupon at special term, a motion was made. by the plaintiffs, founded on the complaint and answer herein, and on an exemplified copy of the judgment record in the New Orleans action, to strike out the whole answer as sham and irrelevant, and for judgment, or that the second and third defenses referred to be stricken out as irrelevant and redundant matter.
    On the motion the exemplified copy of the New Orleans judgment was read in evidence on the part of the plaintiffs.
    
      No papers were read on the part of the defendant.
    . The motion was granted, and an order made striking out the said defense as irrelevant and redundant matter, and it was further ordered that said answer, after striking out said irrelevant matter, be stricken out as sham and irrelevant, with costs.
    Judgment was afterwards entered, finding, as matters of fact,—the due recovery of the judgment; that the plaintiffs were holders of the same; that the same had never been paid ; and, as conclusions of law,—that the plaintiffs are entitled to recover the amount of $5,314.63, with costs, from the defendant.
    From this order and from this judgment the defendant appeals.
    
      James Eschwege and Henry Nicoll, for the defendant, appellant.
    I.—An answer is never stricken out as sham or irrelevant, except its falsity be undoubted and apparent on the face of the pleading. Where the grounds of an affirmative defense are specially stated under oath, as in this case, the answer will not be stricken out (People v. McCumber, 11 N. Y. [1 Kern.], 320 ; McGregor v. McGregor, 35 How. Pr., 385).
    II. So far from the answer in this case being sham or irrelevant, it is submitted that upon the facts, which, for the purposes of this argument, must be taken as true, the judgment which is the subject of this action was recovered by a gross fraud on the part of the plaintiffs and Pain.
    III. Relief against fraud, whether in verdicts, decrees, judgments, or other judicial proceedings, is an acknowledged head of equity jurisdiction. Whether fraud has been committed or not, is to be determined by the peculiar circumstances of the individual case (Jeremy on Eq. Jur., 1 Am. ed., 133; 1 Story Eq. Jur., § 252, and cases cited; People v. Townsend, 37 Barb., 529 ; Michigan v. Phoenix Bank, 33 N. Y, 9 ; Davis v. Tillston, 6 How. U. S., 114 ; Mann v. Worrall, 16 Barb., 221 ; Dobson v. Pearce, 12 N. Y. [2 Kern.], 156).
    
      IY.—The question as to the effect to be given to a foreign judgment, has been the subject of much discussion, and while it may now be conceded that, as a general rule, such judgment operates as res adjudicata as between parties and privies, it is as well settled that the judgment may always be impeached, by the party against whom it is sought to be enforced, as having been obtained unfairly, or through fraud.
    Y. The distinction, taken on the argument in the court below, that the only fraud which could be shown must be one outside of the particular question litigated in the action, is without foundation (Moser v. Polhamus, 4 Abb. Pr. N. S., 442.
    YI. Both the order and judgment should be reversed with costs.
    
      Marsh, Coe & Wallis, for the plaintiffs, respondents.
    —I. The order striking out the first defense as sham and irrelevant, was properly granted. The defense, after admitting that the action was commenced and that answers hr reconvention were put in, as alleged, simply denies knowledge or information of a judgment having been obtained therein. This was a sham answer. (1.) The denial was insufficient. It is not enough for him to merely deny knowledge or information of a fact, when the truth or falsity of the allegation is within his own knowledge (Edwards v. Lent, 8 How. Pr., 28; Sherman v. New York Central Mills, 1 Abb Pr., 187; Wesson v. Judd, Id., 254; Thorn v. New York Central Mills, 10 How. Pr., 19 ; Lewers v. Acker, 11 Id., 37 ; Richardson v. Welton, 4 Sandf., 708 ; Hackett v. Pritchard, 11 Leg. Obs., 315). (2.) The denial of the judgment was false, and therefore sham (People v. McCumber, 18 N. Y., 315 ; S. C., 15 How. Pr., 186; Claflin v. Griffin, 8 Bosw., 689 ; President, &c. Agawam Bank v. Edgerton, 10 Id., 669 ; Beebe v. Marvin, 17 Abb. Pr., 194).
    II. The order striking out the residue of the answer, to wit, the second and third .defenses, as irrelevant and redundant, was correct. The second defense, after averring the facts as claimed by the defendant, relating tc the merits of the New Orleans suit, proceeds to allege that John H. Pain, a witness on the trial of the New Orleans action, falsly testified that Stehn had charged the 100 sacks of coffee to him, the said J. H. Pain, and held him, the said Pain, responsible, from the fact that he had so charged the same in his account current. This is the gist of the second defense. This 'is palpably no defense, either total or partial, and for various reasons, to wit:. The judgment of Louisiana, evidenced by an exemplified transcript of the record, is conclusive upon the. parties, and cannot be impeached in the courts of this State while it stands unreversed (Dobson v. Pearce, 12 N. Y., 156 ; Hatcher v. Rochelau, 18 N. Y, 86 ; Lazeir v. Wescott, 26 N. Y., 146). But the evidence of Pain on the trial of the action at New Orleans was true, and is so proved to be by the defendant, Stehn, himself.
    ■ Even if the defense here set up would be a good ground for opening the judgment, on motion, in Louisiana, or for reversing the same, on appeal, yet it is not available to the defendant in this action, and therefore is irrelevant in this action (Kurtz v. McGuire, 5 Duer, 660 ; Stewart v. Bouton, 1 Code Rep. N. S., 404 ; Dovan v. Dinsmore, 33 Barb., 86; Herr v. Bamberg, 10 How., 128 ; McGregor v. McGregor, 35 How., 385, 400).
    III. If the first defense was properly struck out as sham, and the second "and third defenses were properly stricken out as irrelevant, then it follows that the plaintiffs were entitled to judgment, as if no answer had been put in (De Forest v. Baker, 1 Abb. Pr. N. S., 34 ; Briggs v. Bergen, 23 N. Y., 162).
    IV. This answer is an obvious attempt to gain time by setting up matters which do not raise any material issue to be tried.
   By the Court.—Sutherland, J.

—In my opinion both the order and judgment appealed from should be reversed, but without costs.

The action was brought on a Louisiana judgment. The answer of the defendant purported to set up three distinct and separate defenses.

The learned judge at chambers, on motion of the plaintiffs, struck out the whole of the answer, setting up, or undertaking to set up, the second and third defenses, as “redundant and irrelevant matter,” leaving the'first defense to remain, and then treating that defense as equivalent or amounting to the plea of nul Mel record, pro: ceeded at chambers, withofit a jury, to try that issue, and to find his conclusions of fact, and of law, and ordered judgment for the plaintiffs.

Matter set up as a separate and distinct defense in an answer, must be viewed as a pleading. Under section 152 of the Code, sham and irrelevant answers and defenses may be stricken out; bub under this section, neither an entire answer or defense, nor a part of an answer or defenses, can be stricken out as redundant.

This section says nothing about redundancy.

Under section 160 of the Code, irrelevant or redundant matter in a pleading may be stricken out; but this section does not authorize an entire answer, or an entire defense in an answer to be stricken out, as irrelevant or redundant. By irrelevant or redundant matter in this section is meant matter impertinently or unnecessarily state d in stating the cause of action in the complaint or the defense, or a defense in the answer.

The question is, then, whether the second and third defenses of the defendant’s answer should have been stricken out, under section 152 of the Code, as irrelevant.

Now it appears to me impossible to say that the matters set up in these defenses are irrelevant. They are certainly relevant to the cause of action stated in the complaint—that is, they relate, or pertain to it.

You might concede that defenses were and are even frivolous, but it would not follow that they are irrelevant, by the Code, and. by the dictionaries : if an answer or defense is frivolous, it does not follow that it is, or must be irrelevant.

I think, therefore, that the order striking out the second and third defenses as redundant and irrelevant was erroneous.

Moreover, I am of the opinion that the trial of the issue formed by the first defense which the learned judge must have treated as being, or as amounting to the plea of nul tiel record, was irregular.

The Revised Statutes (2 Rev. Stat., 409, § 4) provided that “all issues of fact joined in any court, proceeding according to the course of common, law, shall be tried by a jury, except where a reference shall be ordered.”

In Trotter v. Mills (6 Wend., 512), the supreme court of this State held that the issue formed by the plea of nul tiel record was an issue of fact within this provision of the Revised Statutes, and was to be tried by a jury.

I cannot discover that the Code has changed the manner of trial of such an issue of fact, or taken away the right of the defendant to have such an issue tried by a jury (Code, § 253.)

He could waive his right of a trial by jury (Code, §§ 253, 266), but I cannot discover in the case any ground for saying that he did waive it.

He had notice of the motion to strike out, and for judgment, but I cannot discover that he had notice of the trial.

I do not think that the circumstances that the defendant excepted to the finding of fact, and to conclusions of law, can be regarded as a waiver of a trial by jury, or as estopping him from taking the ground on this appeal, that the trial by the judge at chambers was irregular. Besides, if the order striking out, &c., is reversed, as I think it should be, the judgment must fall with it. .

Both the order and judgment should be reversed without costs, irrespective of the question whether the matters set up .in the second and third defenses, or either, are, or are not a defense to the action.  