
    Eleanor D. Gaylord, Adm’rx, Resp’t, v. Nelson Beardsley, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Pleading—Irkelevant allegations.
    Where the matter alleged to he irrelevant is not obviously so, but requires elaborate argument to show its irrelevancy, it will not be stricken out on that ground.
    Appeal from order denying motion to strike out a portion of the amended complaint as irrelevant.
    The facts are as follows:
    On September 18. 1884, Nelson Beardsley, this defendant, purchased of Arthur M. Gaylord, the husband of this plaintiff, a mortgage on real estate in the county of Cayuga for $4,784, and agreed to pay the full face value of the same with interest on the date of said mortgage. At the time of said purchase over $5,000, including interest, was due upon the mortgage and unpaid. Beardsley agreed to pay the same in cash, but obtained some little time in which to do so. He, in fact, paid only between the 18th day of September, 1884, and the 29th day of October, 1884, inclusive at different times, the sum of §1,450 in cash. On the 29tTTday of October, 1884, he agreed to apply the sum of §1,035, which he was then owing on the purchase price of said mortgage,to pay and cancel a bond and mortgage which he then held against said Gay-lord and wife, upon which there was then due, principal and interest, the sum of §1,035. Defendant having refused afterwards to perform his agreement and cancel the mortgage, an action was brought against him in the supreme court by Eleanor D. Gaylord to compel the cancellation of said mortgage of §1,035, claiming that the same had been paid by the said application of part of the purchase price of the §1,784 mortgage, and in which action said mortgage was afterwards cancelled by the adjudication of the court. Previous to the adjudication of the court, compelling the cancellation of the $1,035 mortgage, the defendant, Beardsley, had brought an action in the supreme court on the bond accompanying said mortgage against Arthur M. Gaylord and Eleanor D. Gay-lord as defendants. They answered in said action, setting up that said bond and mortgage had been paid. That action was tried in the supreme court and a verdict and judgment was found and entered on the part of the defendants in said action against said Beardsley, adjudicating said bond and mortgage to have been paid by the purchase by Beardsley of the $4,784 mortgage and the agreement to apply §1,035 of the same to extinguish the mortgage and bond of §1,035, which judgment is unreversed. Arthur M. Gaylord assigned the claim for the balance of the moneys due on the sale to the defendant of the §4,784 mortgage to his mother-in-law, Ann C. Bradburn, who commenced an action against said Beardsley to recover the same. During the pendency of said action said Ann C. Brad-burn died, and Eleanor D. Gaylord was appointed her administratrix. The action so brought by Ann 0. Bradburn was revived and continued by an order of the court in the name of the present plaintiff. The complaint in said action was thereupon amended setting up the original cause of action, the death of said Ann G. Bradburn, revivor and continuance of said action in the name of Eleanor D. Gaylord as her administratrix, and also setting up in the eleventh paragraph the facts in regard to the adjudication in the case of Beardsley against Eleanor D. Gaylord and Arthur M. Gaylord. The defendant Beardsley moved to strike out the eleventh paragraph of the amended complaint upon the sole ground that the same is irrelevant.
    
      Jas. R. Cox, for app'lt; Frank D. Wright, for resp’t.
   The following is the memorandum at special term:

Vann, J.

Motion denied, with ten dollars costs to abide event, upon the ground that where the matter alleged to be irrelevant is not obviously so, but requires an elaborate argument to show its irrelevancy, it should be allowed to stand, so that the trial court can receive or reject the evidence as it deems best. A motion of this kind should not be allowed the function of a special demurrer to a part only of a single cause of action. Baer v. Seymour, 12 St. Rep., 166; Williams v. Folsom, 32 id., 455; Wilbur v. Fowler, 85 N. Y., 621. Ordered accordingly.

Order appealed from affirmed, with ten dollars costs and disbursements, on memorandum of Vann, J., at special term.

Dwight, P. J., Lewis and Haight, JJ., concur.  