Opinion
01-30-1900
DOANE & JONES LUMBER CO. v. ESSEX BUILDING & LAND CO.
John G. Trusdell, for complainant. Fred Prout, for defendant.
Bill by the Doane & Jones Lumber Company against the Essex Building & Land Company. Application to strike out portions of defendant's answer. Denied.
John G. Trusdell, for complainant.
Fred Prout, for defendant.
STEVENS, V. C. The application in this case is misconceived. It is substantially a demurrer to the answer. Such a demurrer is not recognized in the books. Travers v. Ross, 14 N. J. Eq. 254. Rule 213 provides that any objections to any pleading, or to any part thereof, may be adjudicated upon on motion without the filing of a demurrer or exceptions, but the notice of such motion must state the particular ground or grounds of objection. By force of this rule, such an application, in the case of an answer, does no more than take the place of exceptions, and is to be decided by the rules which apply in determining whether the exceptions are well taken. Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029. Exceptions may be taken to an answer for scandal, for Impertinence, or for insufficiency. The passages which it may be claimed are impertinent or scandalous must be pointed out. Daniell, Ch. Prac. p. 402. If the answer be insufficient, the plaintiff must state such parts of the bill as he conceives are not answered. Id. p. 877. A statement of the particular ground of objection, whether for scandal or impertinence, necessarily includes a statement of, of specific reference to, the part of the answer objected to. The notice in question states, first, that the matter set up in the amended answer does not disclose any equitable defense. This is mere demurrer. If complainant is willing to take the somewhat hazardous course of conceding all that defendant avers in the answer, he should set the case down for hearing on bill and answer. The second statement is that "some of the matter set up as a pretended defense" shows defendant guilty of fraud, and that "a part of the matter set up" is not properly pleaded. The particular matters thus criticised are not pointed out if they had been, the objection, if sustained, would have gone, not to the whole bill, but only to the part indicated. The verification of the answer appears to be in the common form. The application is denied, with costs.