Opinion
April, 1913.
Convers Kirlin (John M. Woolsey and L. deGrove Potter, of counsel), for appellant-respondent.
Hunt, Hill Betts (Geo. Whitefield Betts, Jr., and John W. Crandall, of counsel), for respondent-appellant.
This is an action by the assignors of a consignor of imported goods against a steamship company for delivering the consignment in a damaged and unsound condition.
The complaint sets forth the bills of lading, and, after alleging shipment of the consignment to the United States and its arrival in Boston, Massachusetts, sets forth the agreement in the bills of lading that the Harter Act (4 Fed. Stat. Ann. 854), which provides in substance that a carrier may not exempt itself from liability for negligence in the loading, stowage, care and custody of merchandise with which it is entrusted, shall govern the stipulations therein, when the merchandise is carried to the United States, and that any stipulation contrary to the provisions of congress, and especially the Harter Act, shall, in that event, be inoperative.
The answer denies damage arising from defendant's negligence; expressly admits, in the 6th paragraph, that the stipulation above referred to is in the bills of lading, and in the 16th paragraph sets up, as a separate defense, certain clauses of the bills of lading exonerating the defendant from liability and providing that the contract shall be governed by British law.
The order appealed from strikes out the words "or otherwise" in paragraph sixteen of the answer relating to such exemptions, and also the words "This contract shall be governed by British law, except that" as irrelevant and redundant, pursuant to section 545 of the Code of Civil Procedure.
The order also denies plaintiff's motion to strike out as irrelevant and redundant all of paragraph seventeen of the answer, which sets up, as a separate defense, that the contract is to be governed by British law; and further directs that the answer be made more definite and certain, in that the defendant, instead of alleging the excepted clauses of the bills of lading, as it has done under subdivisions 1 and 2 of said 16th paragraph, should allege each affirmative defense, which should be separately numbered and contain a statements of the facts constituting such defense in ordinary and concise language, without repetition. The order further denies plaintiff's motion for a bill of particulars, without prejudice to a renewal thereof.
The parties having, by their own act, stipulated in the bills of lading that the provisions thereof set forth in the 16th paragraph of the answer should, upon shipment to the United States, which is admitted in the answer, be eliminated from the contract, the contract as so amended is to be deemed the contract between the parties, and upon the trial of the action, the defendant, under the admissions contained in the answer, would not be entitled to introduce evidence in support of such allegations. Yet, though it is evident the denial of the motion to strike out may work great hardship and injustice to the plaintiff in forcibly compelling him to go to the expense of taking by commission evidence which will be inadmissible on the trial, under the established rules of law governing the striking out of separate pleas as redundant and irrelevant, the order, so far as it strikes out the separate defense in the 16th paragraph, cannot be sustained.
"Section 545 of the Code of Civil Procedure does not authorize a motion to strike out an entire pleading or plea as irrelevant or redundant matter, but only irrelevant or redundant matter 'contained' therein." Stroock Plush Co. v. Talcott, 129 A.D. 14.
"An entire defense, even though insufficient in law, cannot be stricken out as irrelevant, redundant or scandalous." Gibson v. McDonald, 139 A.D. 51.
The order must, therefore, be modified so as to deny the motion to strike out portions of the 16th paragraph of the answer, and, as so modified, affirmed, with ten dollars costs and disbursements of appeal to the defendant-appellant.
GERARD and PAGE, JJ., concur.
Order modified, and, as modified, affirmed, with ten dollars costs.