These and the other allegations excepted to are but allegations setting forth the different aspects of her defense,-- a method of pleading allowable in bills, and certainly permissible in an answer. In Leslie v. Leslie, 50 N. J. Eq. 155, 24 A. 1029, a rule was declared respecting the allegations of an answer which appears to be applicable to this case. The rule is this:
If such facts are relevant for any purpose, there can be no objection to alleging them in the petition in spite of the fact that they do not constitute part of the cause of action. Dodd v. Wilkinson, 42 N.J.Eq. 647, 651, 9 A. 685; Leslie v. Leslie, 50 N.J.Eq. 155, 24 A. 1029, affirmed on main case 52 N.J. Eq. 332, 31 A. 724; Daly v. Watson, 118 N.J.Eq. 258, 178 A. 781; see Lutz v. Lutz, 52 N.J.Eq. 241, 28 A. 315. On the contrary, their inclusion in the petition may elicit admissions of value to petitioner, and will certainly tend to eliminate surprise and consequent delay.
A motion to strike out a defense in an answer, under that rule, takes the place of the more tedious procedure by exceptions.The rule does not introduce a new practice, whereby the legal sufficiency of a defense presented in an answer may be tested by moving to strike it out; that is, under the form of a motion to strike out, the complainant cannot, in substance, demur to the answer. Leslie v. Leslie, 50 N. J. Eq. [5 Dick.] 155, 24 A. 1029; Doane v. Essex Building Association [59 N. J. Eq. 142, 45 A. 537], supra; Brill v. Riddle Co. (May, 1900, in this court) 47 A. 223."
In Dodd v. Wilkinson, 42 N. J. Eq. (15 Stew.) 647, 651, 9 Atl. 685, 687, Justice Van Syckel said: "The greatest care must be taken that nothing shall be stricken out before the whole case is before us in the testimony, which may, in any view of the controversy, become pertinent." This case is cited with approval by Vice Chancellor Van Fleet in Leslie v. Leslie, 50 N. J. Eq. (5 Dick.) 155, 157, 24 Atl. 1029, 1030. The motion to strike out under the first objection is denied.
The last objection is too indefinite to merit attention. Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Doane v. Lumber Co., 59 N. J. Eq. 142, 45 Atl. 537.
The defendant in this case, having fully answered, cannot now demur, and, having no standing to demur, she cannot move to strike out. The rule substitutes a rapid remedy in the place of a slow one, but does not enable parties who have recognized efficacy of a pleading to move to strike it out. Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Doane v. Land Co. (N. J. Ch.) 45 Atl. 537; Brill v. Mary A. Riddle Co. (decided May, 1900) 47 Atl. 223. In this situation of the pleadings the merits of the objections to the bill of complaint cannot be considered.
The rule does not introduce a new practice, whereby the legal sufficiency of a defense presented in an answer may be tested by moving to strike it out; that is, under the form of a motion to strike out, the complainant cannot, in substance, demur to the answer. Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1059; Doane & Jones Lumber Co. v. Essex Building & Land Co., ubi supra; Brill v. Mary A. Riddle Co. (May, 1900, in this court) 47 Atl. 223. The further contention of the complainant is that the whole cross bill of the defendants should be stricken out, because he insists that the matter there set up and the relief sought are foreign to the main suit, and not the proper subject of a cross bill.
This notice to strike out is given under rule 213, which provides that any objections to any pleading, or to any part thereof, may be adjudicated upon a motion without the filing of a demurrer or exceptions, hut the notice of such motion must state the particular ground or grounds of objection. This rule has been interpreted by Vice Chancellor Van Fleet in Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029, and by Vice Chancellor Stevens in Doane & Jones Lumber Co. v. Essex Building & Land Co. (N. J. Ch.) 45 Atl. 537. They both hold that, when the challenged pleading is an answer, the application to strike out takes the place of exceptions, and must be decided by the rules which govern in cases of exceptions taken to an answer; that exceptions to an answer may only be taken for scandal, for impertinence, and for insufficiency.
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.