
    The William H. Frank Brewing Company, Appellant, v. August Hammersen, Respondent.
    
      A whole count cannot be stricken out as irrelevant or redundant—new matter in a ■reply inconsistent with the complaint —it may he stricken out.
    
    Where, in an action brought to recover moneys claimed to have been paid out at the request of the defendant, who promised, but failed, to return the same, the first count of the reply, directed against certain counterclaims arising out of contract, sets forth a claim for damages arising out. of false representations made upon the part of the defendant which induced the payment of the money, such count is properly stricken out as inconsistent with the complaint.
    
      Semhle, that a whole count of a pleading interposed in an action cannot, under section 545 of the Code of Civil Procedure, be stricken out as irrelevant or redundant..
    
      Appeal by the plaintiff, The William H. Frank Brewing Company, from so much of an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5tli day of June, 1897, as' grants the defendant’s motion to strike out portions of the plaintiff’s reply as irrelevant, redundant and as new matter inconsistent with the complaint.
    
      M. Hallheimer, for the appellant.
    
      Bernard J. Iseehe, for the respondent.
   Willard Bartlett, J.:

The Code of Civil Procedure provides that irrelevant, redundant or scandalous matter in a pleading may be stricken out upon the motion of a person aggrieved thereby. (Code Civ. Proc. § 545.) In the case of Goodman v. Robb (41 Hun, 605), however, the General Term of the fifth department expressed the opinion that an entire count in a pleading could not be stricken out as irrelevant or redundant under this section of the Code. If that view be correct, the order under review cannot be sustained so far as it is based upon irrelevancy or redundancy, for it assumes to strike out the whole of the 1st subdivision or count of the reply.

But there is another ground upon which, 1 think, the order can be upheld, and that is the inconsistency between that portion of the reply and the complaint. Where new matter is set forth in a reply, it must be new matter not inconsistent with the complaint. (Code Civ. Proc. § 514.) If this requirement is disregarded, and incon-' sistent matter is pleaded, the defendant may have it stricken out on motion. (Eidlitz v. Rothschild, 87 Hun, 243; Fitzgerald v. Rightmeyer, 12 Misc. Rep. 186.) As I understand these decisions, they proceed upon the assumption that the power to strike out new matter, not consistent with the complaint, exists irrespective of the express authority conferred by section 545 of the Code.

The plaintiff corporation sues as the assignee of one Mausman, to recover $211.44, which it claims was paid out by the said assignor at the request of the defendant, who promised but has failed to repay the same upon demand. The answer sets up three counterclaims arising out of contract, and it is to these that the 1st subdivision or count of the reply is directed. In that part of the reply we find averments tending to show a claim against the defendant, not simply for money paid out at his request, as alleged in the complaint, and, hence, constituting a cause of action on contract merely, but a claim for damages arising out of false representations on the part of the defendant, inducing the payment of the money. Here we have an attempt to plead a cause of action based on fraud, the effect of which, if such a course were permissible, would be to amend the complaint by means of the reply, so as to change a cause of action on contract tó a cause of action sounding in tort. I do not think such pleading can be regarded as a compliance with section 514 of the Code of Civil Procedure.

The order of the Special Term should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  