
    Supreme Court, New York Special Term.
    Reported. N. Y. L. J.
    November 29, 1901.
    Patrick W. Cullinan v. Frank Hermann, et al.
    Motion by the plaintiff to strike out of the answer of the defendant, Frank Hermann, the words, in folio 2: “ He repeats the foregoing allegations,” on the ground that the said matter is redundant; and the words in folios 2 and 3 thereof, “And for a further and separate defense against the cause of action set forth in the complaint alleges as follows: II. That upon the trial of an indictment in the Court of General Sessions in and for the county of Hew York, which is a court of record, it was adjudged upon the verdict of a jury that the defendant was not guilty of and did not commit the acts and omissions stated in the complaint herein, and that no appeal was taken from said judgment, and the time within which an appeal could be taken has expired,” on the ground that the matter therein contained is irrelevant, immaterial and impertinent.
    
      Herbert H. Kellogg, for plaintiff.
    
      J. Mulholland, for defendant Hermann.
    
      Boardman, Platt & Soley, for defendant, United States Fidelity and Guaranty Company.
   Clarke, J.:

A plea of autre fois acquit would be good in a criminal case. But this is a civil action, with a different rule as to proof. Here, preponderance; in the criminal court, beyond a reasonable doubt. The parties are different. The People, in one case, asking for fine and imprisonment, based upon conviction of a crime. Here, the commissioner suing on a bond against principal and surety on money judgment on a contract.

The motion is granted, $10 costs to abide event.  