
    Stephen Sanford et al., Resp’ts v. John Claflin et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Pleading-—Answer—Irrelevant allegations.
    Allegations in an answer charging plaintiffs with making a private agreement with defendants’ agent over four years before the making of the contract which is the subject of the action, no claim being made for damages on account of said act of plaintiff, are irrelevant and should be stricken out on motion.
    Appeal from order striking out certain portions of defendants’ answer as redundant and irrelevant.
    
      Charles W. Gould {Z. S. WestbrooJc, of counsel), for app’lts; W.. L. Van Denbergh, for resp’ts,
   Putnam, J.

The action is brought upon a written contract, dated February 11, 1888, by which defendants in consideration of an extra one per cent agreed to sell 24,000 pieces of plaintiff’s carpets, confining their sales of tapestry and velvet goods exclusively to those of plaintiffs’ manufactures. The complaint, alleges the receipt and retention of a sum mentioned therein by defendants on account of said one per cent, a failure by defendants to perform the contract, and hence their liability to repay the said sum so paid to or retained by them.

The answer admits and denies certain allegations contained in the complaint. Second, admits a contract made on February 11,. 1888, partly verbal and partly written, differing from the contract, set out in the complaint; alleges that defendants performed and plaintiffs failed to perform the covenants therein, whereby the-defendants suffered damage; and, third, sets up the same facts as-a counterclaim.

In the second part of the answer are the clauses stricken out by the special term relating to one William H. Davis, a former agent of the defendants, discharged by them on or about December 31, 1884; the alleged misconduct of the plaintiffs in making a private agreement with Davis preceded the making of the contract in question over four years.

We are unable to see what relevancy the allegations stricken out have to the issues raised by the pleadings in this case. It-will be observed that the written memorandum executed on February 11, 1888, as claimed by each of the parties, is the same,, except that the defendants assert that the figures “ twenty. _ thousand ” was contained in it before the figures “ twenty-four' thousand.” Both parties conceded that by the contract of February 11th the defendants were to have an extra one per cent. If there was a dispute raised by the pleadings in regard to this extra one per cent. it is possible that the allegations stricken out might be properly retained in the pleading. But the contract in regard to the one per cent is conceded to be in writing, and there is no issue in the pleadings in that regard. The only issue being ■as to whether defendants were*to sell twenty thousand or twenty-four thousand pieces of goods each year, and whether plaintiffs agreed in the same contract to furnish defendants with goods of the quality specified in the answer, and to furnish such goods to the defendants exclusively.

We think it is plain that the allegations in the answer charging plaintiffs with making a private agreement with defendants’ agent over four years before the making .of the contract which is the subject of the action irrelevant to the real issue in the case. No ■plaim is made for damages on account of the said acts of plaintiffs. It may be inferred from the answer that the pleader intended to •have it understood that the alleged improper action of the plaintiffs induced the defendants to insist upon receiving the extra one per cent, and the plaintiffs to yield to defendants' demand in that regard. But if so, the allegation is entirely irrelevant. It is of no consequence what induced the defendants to demand and the the plaintiffs to give the extra one per cent. The parties both agree that this one per cent was reserved in the contract. No issue is raised in that regard, and the reasons that induced the action of the parties is not material.

If the clauses in the answer in regard to plaintiffs making a private arrangement with defendants’ agent, Davis, on or before 1884 are allowed to remain in the pleading defendants will have the right to offer testimony upon that subject on the trial of the ■case, and plaintiffs will have to be prepared to meet such evidence. But inasmuch as there is no dispute between the parties in the pleadings as to the one per cent, it is difficult to see what rele-vancy such testimony would have to the real issues in the case.

We therefore think that the order of the special term was correct. We bear in mind the holding of the general term of this district. Town of Essex v. The N. Y. & Can. R. R. Co., 8 Hun, 361. In that case the court decided that irrelevant and redundant matter should be stricken from the pleadings with reluctance and caution. But the court determined in that case that it was proper to strike from the pleadings matter which on the first glance is plainly impertinent. We think the clauses stricken out by the special term were of that character, and such clauses being impertinent the allegations contained therein were of such a nature that they should not be allowed to remain in the pleadings. See Smith v. Hilton, 19 St. Rep., 344-345.

Order affirmed, with ten dollars costs and printing disbursements.

Herrick, J., concurs; Mayham, P. J., not sitting.  