Opinion
November, 1905.
C. Tracey Stagg, for the appellant.
Edward B. Whitney, for the respondent.
Without expressing any opinion upon the relevancy of the facts alleged in the answer, which were stricken out by the court below as irrelevant, as a defense to the plaintiff's cause of action, I do not think that these allegations are so plainly irrelevant as to justify the court in striking them out. This answering defendant is a surety upon a bond given to the Elmira National Bank by John J. Bush, who was its cashier. The portions of the answer stricken out substantially determined the sufficiency of a separate defense, and that question should be determined by demurrer, or upon the trial, and not by a motion to strike out as irrelevant. ( Smith v. American Turquoise Co., 77 Hun, 192.) I think the defendants should be allowed to set forth these facts, and have the court determine upon the trial of either an issue of law or an issue of fact the question as to whether any defense is alleged.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
O'BRIEN, P.J., PATTERSON, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.