
    Plymouth Garage, Inc., Respondent, v. James B. Shanly and Frederick J. Decker, Appellants.
    Fourth Department,
    November 17, 1915.
    Pleading—practice — motion to strike out allegations as redundant or irrelevant — sufficiency of allegations containing a semblance of a cause of action or defense cannot be tested on motion to strike out.
    Where there is a semblance of a cause of action or defense pleaded, its sufficiency cannot be determined on motion to strike out as redundant or irrelevant. The proper way to test its validity is by demurrer or by motion on the trial.
    The power to strike out on motion averments in a pleading because of irrelevancy, applies only to such matter as is irrelevant to the cause of action or defense attempted to be stated.
    Hence, in an action to recover against the sureties upon an undertaking in an action of replevin, upon the ground that the action had abated by the failure of the judge to render his decision within the statutory time, the sufficiency of a defense that the plaintiff is estopped from claiming such abatement because of the extension of the time for rendering such decision by agreement of the parties, and by the refusal of the plaintiff to execute a written stipulation to authorize the decision in accordance with a prior oral agreement, cannot be tested by motion to strike it out as irrelevant or redundant upon the ground that the alleged oral agreement between counsel was in violation of rule 11 of the General Rules of Practice requiring such agreements to be in writing.
    Kruse, P. J., dissented, with memorandum.
    Appeal by the defendants, James B. Shanly and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 28th day of April, 1915, striking out certain parts of their answer as irrelevant and redundant.
    
      Charles B. Bechtold, for the appellants.
    
      George D. Forsyth, for the respondent.
   Per Curiam:

This action is brought against the defendants as sureties upon an undertaking given in an action of replevin in the Municipal Court of the City of Rochester to recover possession of an automobile. In that action the Shafer-Decker Company was plaintiff, and the Plymouth Garage, Inc. (plaintiff here) and Joseph A. Gravell and Elmer E. Wyckoff were defendants.

The condition of the undertaking is “for the prosecution of the * * * action; for the return of said chattels to the above-named defendants, if possession thereof is adjudged to them, or if the action abates or is discontinued before the said chattels are returned to said defendants.”

The complaint here alleges that possession of the automobile was taken from plaintiff by virtue of the requisition issued in said replevin action, and that the same has never been returned to plaintiff. That issue was joined in said action and a trial had in said Municipal Court, but no decision was rendered by the judge and said action abated and plaintiff became entitled to a return of said automobile, on which plaintiff claimed a statutory lien for repairs and storage, the amount of which is not alleged, and that plaintiff had demanded the return of said automobile, which was refused, to the damage of plaintiff in the sum of $500, for which sum judgment is demanded.

Defendants’ answer admits the allegations of the complaint as to the commencement of the replevin action in the Municipal Court to recover said automobile; its replevy therein from plaintiff’s possession, and that it has never been returned to plaintiff; denies knowledge or information sufficient to form a belief as to the allegation of plaintiff’s incorporation, and by appropriate form of denial puts in issue all other allegations of the complaint. The answer then sets up as a “ second separate answer and a complete defense ” in substance and effect that said Municipal Court action has not abated by failure of the judge to render his decision within the statutory time, and that plaintiff is equitably estopped from claiming such abatement because of the extension or enlargement of the time for rendering such decision by agreement of the parties through their counsel, first, by written stipulation, and later, by oral agreement, upon which defendants and their principal and said judge acted and relied and that said judge is ready to render his decision, but plaintiff refuses to execute the necessary written stipulation to authorize such decision to be now made in accordance with its oral agreement so to do. The answer does not raise the question as to the right of plaintiff alone to maintain the action without joining the other defendants in the Municipal Court action. Substantially the whole of this “second separate” defense has been stricken out by the order appealed from as irrelevant and redundant.

The sole ground upon which respondent seeks to sustain this order here is that this defense is insufficient in law upon its face because the alleged oral agreement between counsel contravenes rule 11 of the General Eules of Practice which requires such agreements to be in writing.

We think the sufficiency of this separate defense cannot properly be tested by motion under section 545 of the Code to strike it out as irrelevant or redundant. There is at least the semblance of a defense pleaded, and there is nothing alleged which is irrelevant or redundant as regards the substance of the defense attempted to be set up.

The rule is that where there is a semblance of a cause of action or defense set up in a pleading its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. The proper way to test its validity is by demurrer or by motion on the trial. (Walter v. Fowler, 85 N. Y. 621; Arnold v. Arnold, 134 App. Div. 758.)

The power to strike out on motion averments in a pleading because of irrelevancy applies only to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading. (Hagerty v. Andrews, 94 N. Y. 195; Tierney v. Helvetia-Swiss Fire Ins. Co., 129 App. Div. 694.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion denied, with ten dollars costs.

All concurred, except Kruse, P. J., who dissented in a memorandum.

Kruse, P. J. (dissenting):

If the motion had been denied at Special Term I should vote to affirm under the rule referred to in the prevailing opinion; but since the question has been passed upon at Special Term and decided correctly, as I think, the order may as well stand.

I am of the opinion that the Municipal Court lost jurisdiction of the action in which the undertaking was given, and that thereupon the obligation thereon to return the property became effective.

It seems clear to me that the new matter pleaded and stricken out does not constitute a defense.

I, therefore, vote for affirmance.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  