Opinion
February 26, 1931.
Appeal from the City Court of the City of New York, County of New York.
Ralph E. Freidus, for the appellant.
Alexander B. Greenberg, for the respondents.
The case relied on by the court below involved the right to serve a reply and was not applicable to the present case where a reply was directed by order of the court. Motions to strike out allegations or parts of pleadings on the ground that they are redundant or unnecessary are not favored and are granted only where the allegations are prejudicial and have no bearing on the subject-matter of the litigation. ( Baruch v. Young, 149 A.D. 466; Stern v. Philipsborn, 169 id. 781.) In view of the direction for a reply the provisions of section 243 of the Civil Practice Act did not aid plaintiff. Where it is doubtful whether matters alleged may be proved under a general denial, but facts alleged are material, they should not be stricken out. ( Clode v. Scribner's Sons, 200 A.D. 532.) In view of the requirements of section 242 of the Civil Practice Act, plaintiff was entitled to entertain such doubt herein. The matters set forth affirmatively in replication seem sufficient and material.
The order appealed from is reversed, with ten dollars costs and disbursements, and motion denied.
Present, LYDON and CALLAHAN, JJ.