Beebe a. Marvin.

BEEBE a. MARVIN.

New York Superior Court; General Term, Dec., 1863.

SHAM AND FALSE ANSWER.-EFFECT OF NOTICE OF TRIAL.JUDGMENT OF SISTER STATE.

Serving a notice of trial is not a waiver of a motion previously noticed to strike out the answer in the cause as sham or false.

In an action upon a judgment recovered in a sister State, proof that the defendant appeared in the original action, and a certified copy of the judgment record, are, in the absence of affidavits on the part of the defendant, sufficient evidence of the falsity of an answer denying knowledge or information sufficient to form a belief as to the recovery of the judgment and the jurisdiction of the court which rendered it.

Appeal from an order striking out an answer as sham and false.

This action was brought by George M. Beebe against Walter K. Marvin on a judgment recovered in Kansas for $364. The complaint alleged the recovery of the judgment in Kansas; that the Kansas court had jurisdiction of the action and of the person of the defendant, and that the defendant appeared in the action there; that the judgment was unpaid, and due and owing, and that the defendant had been requested, and refused to pay it; and that judgment was therefore demanded in this suit, with interest and costs.

The defendant obtained some thirty or forty days additional time to answer, upon the allegation that he was absent from Kansas at the time of the alleged recovery of the judgment against him there, and that it was necessary that he should procure a certified copy of such judgment before answering, and that he had sent to Kansas for such copy of the judgment.

On May 8, 1863, the defendant answered by merely denying knowledge or information sufficient to form a belief of the truth of the facts alleged in the complaint.

A motion was made upon the pleadings, and upon an affidavit

Beebe a. Marvin.

of the plaintiff's attorney, stating that he had in his possession a duly exemplified copy of the record of the Kansas judgment; from which record it appeared that the defendant had appeared, by Charles Chadwick, his attorney, and answered in the action in Kansas, and that judgment was thereafter rendered in that action in favor of the plaintiff for $364.

Notice of the motion was served on the defendant's attorney in this suit on May 13, 1863.

On May 14, 1863, the plaintiff served on the defendant's attorney a notice of trial of the issue of facts in the causes, for the next June term of this court.

An order was made by Mr. Justice White, at Chambers, striking out the answer as sham and false. From this order the defendant appealed.

Miller, Peet & Nichols, for the appellant.

Edwards & Odell, for the respondent.-I. The motion, under § 152 of the Code, may be made at any time before trial. (Miln a. Vose, 4 Sandf., 660.)

II. The motion was not waived by the notice of trial. The two proceedings were in no way inconsistent. Nor does the Code limit such a motion to those cases in which no notice of trial has been served. (Kellogg a. Baker, 15 Abbotts' Pr., 286; Miln a. Vose, 4 Sandf., 660.)

III. The defendant should be required to assign conclusive reasons in support of an objection so purely technical. The decision at special term was right upon the merits.

IV. When the matters alleged are necessarily or presumptively within the defendant's personal knowledge, he cannot deny sufficient knowledge or information. (Voorhies' Code, 7 ed., cases cited, p. 203; Richardson a. Wilson, 4 Sandf., 708.)

V. Every legal presumption will be given in favor of, and to uphold such jurisdiction of the Kansas court. (Harrod a. Barretto, 1 Hall, 155.) And a defendant can give no evidence to disprove the presumption, unless he, in his answer, expressly denies such jurisdiction. (b.)

The allegation, therefore, stands admitted.

Cahill a. Palmer.

BY THE COURT.*-ROBERTSON, J.-The defendant appeared in the action in which the judgment sued on was recovered. He procured delay three times, in pleading in this action for order to have time to obtain a copy of the judgment. A certified copy of the judgment is produced, and his only answer is ignorance of all matters charged in the complaint. It is not enough in such case, where the presumption is of knowledge (1 Voor. Code, 7 ed., 203, cases cited; Richardson a. Wilton, 4 Sandf., 708), simply to rest on ignorance. Every presumption is in favor of the jurisdiction of the court of Kansas (Harrod a. Barretto, 1 Hall, 155); and there was no error in the order striking out the answer for that reason. The plaintiff was not barred from making the motion by having noticed the issues for trial. He was entitled to the earliest disposition of a sham defence he could get. Kellogg a. Baker (15 Abbotts' Pr., 286), is not against this view.

The order appealed from must be affirmed, with costs.

CAHILL a. PALMER.

Supreme Court, First District; General Term, December, 1863. IRRELEVANT MATTER.-PLEADING.-CAUSE OF ACTION.

Allegations which can in no aspect of the case made by a pleading be material, are irrelevant, and should be struck out on motion.

In pleading, the fact to be established by evidence must be averred, not the evidence itself. Illustrations of this rule.

An action will not lie against a municipal corporation to try irregularities in proceedings to take land for public use, and awarding the damages to another than the true owner. The proper remedy stated.

Appeal from an order striking out portions of the complaint as irrelevant.

This was an action by Sylvester Cahill and Gilliam B. Seely against Courtlandt Palmer and the Mayor, &c., of New York, to obtain a judgment for $73,040, awarded to Palmer by the

*Present, ROBERTSON, WHITE, and BARBOUR, JJ.

Cahill a. Palmer.

commissioners appointed to assess damages for certain lands acquired by the city of New York for a public park. The form of the complaint is sufficiently stated in the opinion. The averments stricken out were: that Palmer attended the commissioners "in the absence of the plaintiffs;" that the commissioners refused to give any information regarding the title of Palmer and his evidence; refused to allow plaintiffs to contest Palmer's title; and also, that court and counsel, on the confirmation of the commissioners' report, declared that "such confirmation would not prejudice plaintiffs' right to contest defendants' title to said land or premises, or to the money awarded." The plaintiff's appealed.

Anthony R. Dyett, for the appellants.-I. The Code, § 160, authorizes "irrelevant or redundant matter" to be stricken out, "on motion of any person aggrieved thereby." This is but a retention of the old chancery practice upon exceptions for irrelevancy, &c. (18 How. Pr., 240.) It is the same as impertinence in chancery and surplusage at law (1 Barb. Ch. Pr., 41, 101; Steph. Pl., 422), and includes matter wholly foreign, or which does not require to be stated. This is neither. Formerly, redundant and irrelevant matter was stricken out in chancery, because costs went by the folio, and the defendant had to pay for it, and for his answer to it, perhaps. And now, if the matter be not prolix, and does not prejudice seriously the defendants, it will not be stricken out. (8 How. Pr., 470.) This matter cannot harm the defendants, if irrelevant. If stricken out, and it be relevant, it may do us irreparable mischief.

II. If the matter be inadmissible in evidence, it is irrelevant -e converso; if admissible, it is not. (13 How. Pr., 97; 1 Barb. Ch. Pr., 202; 1 Johns. Ch., 103.) But the rule in chancery was, that if the matter be admissible, even as affecting the question of costs, it should not be stricken out. (4 Paige, 174; 1 Edw., 350.) Here it certainly may affect that question. This is a case in which costs are in the discretion of the court. And the matter never is stricken out where there is any doubt as to its relevancy. (6 How. Pr., 355; 18 Ib., 240.) Again, the matter asked to be stricken out mutilates the complaint, and makes its whole scope and meaning different from what it is. It alters the scheine or theory of the action, and makes the

Cahill a. Palmer.

plaintiffs allege a different state of facts, unfavorable to themselves. And again, it leaves what remains unintelligible and insensible.

III. A complaint may now, as well as formerly, be in a double aspect. We may be obliged in this case to urge our claim as a bill of review, upon equitable grounds. This is a familiar kind of bill, applicable to all cases, as well at law as in equity, and was once the only mode of obtaining a new trial, and is now in vogue where there is no other remedy; and we may be compelled, if the court decide the order of confirmation of the report to be final at law, to resort to this equitable remedy, and then these facts asked to be stricken out would form the essence of our action.

Ruggles & Felt, for the respondent.

LEONARD, J.-This is an appeal from an order striking out portions of the complaint as irrelevant and redundant.

The action relates to moneys awarded to the defendant, Palmer, as the owner of certain lands taken for the Central Park, but which the plaintiffs claim to have owned; and that the award was erroneously made in favor of Palmer as the

owner.

There are certain allegations in the complaint showing that the plaintiffs were not allowed to inspect the evidence of title produced by Palmer, and were not allowed a hearing before the commissioners of estimate and assessment, and that they demanded their rights, as they claimed them, in these respects. There is also an allegation of what was said by the corporation counsel and by the court, on the motion to confirm the commissioners' report.

These allegations were stricken out, on motion, as irrelevant and redundant, and the plaintiffs now appeal from the order.

The whole complaint appears to be bad, unless the action can be understood as one to recover money which Palmer or the corporation of the city of New York have in hand for the lands alleged to belong to the plaintiffs, which have been condemned for public use under the statutes referred to in the complaint.

There is no allegation that the land has been taken for public