Opinion
02-18-1903
THOMPSON et al. v. WILLIAMSON et al.
Percy R. Crane, for complainants. T. C. English, for defendants.
Suit by W. Ledyard Thompson and others against Frederick B. Williamson and others. Complainants move to strike out portions of the answer of defendant Williamson for irrelevancy and impertinence. Granted in part.
Percy R. Crane, for complainants.
T. C. English, for defendants.
EMERY, V. C. The first two motions to strike out were withdrawn at the argument, and my conclusions on the third motion are as follows:
1. Complainants' bill makes allegations that their debt of $8,780.68, upon which suit in New York was brought in November, 1899, "had become due from Frederick B. Williamson in the month of May, 1899." The conveyance alleged to be fraudulent was dated October 25, 1899. The time of incurring the debt was, therefore, material, and complainants have asked discovery on oath, as to all the allegations of the bill, from this defendant, the debtor.
The paragraph of Frederick B. Williamson's answer to which the first part of complainants' third motion to strike out applies includes a statement as to the agreement on which the account with complainants was opened, and as to the time of opening the account, and afterwards says, "Such agreement and opening of account having been made late in the year A. D. eighteen hundred and ninety-seven." On this matter of time a subsequent portion of the paragraph says "that in the course of such dealings no statement of account was made or rendered other than a memorandum slip of the sales or purchases of single days, nor did he actually know at the time alleged in the bill of complaint, as the day whereupon he was indebted to the complainant in the sum of money therein mentioned." The time of the incurring of complainants' debts is a material point of the case, and the time was distinctly alleged in the bill. As complainants ask discovery on oath upon this point, and upon all other allegations of the bill from this defendant, he was entitled to answer it, and complainants cannot strike out the answer on this point for which they have called. On exception or motion to strike out an entire paragraph for impertinence or irrelevancy, the exception or motion must fail if any portion of the paragraph excepted to is either relevant or responsive. 1 Dan. Ch. Pr. (6th Am. Ed.) 352; Wagstaff v. Bryan, 1 Russ. & Myl. 30; McGuckin v. Kline, 31N.J.Eq. 454, 457 (Runyon, Ch. 1879). A different rule obtains on exceptions for insufficiency, in which case the exceptions may be sustained in part. Bennett v. Hamlin, 47 N.J.Eq. 326, 21 Atl. 953 (Err. & App. 1890). The effect of the answer on this point, either as to this defendant or to the other defendants, is a matter to be decided on final hearing.
2. The second paragraph referred to in the third motion to strike out must be stricken out. This sets up that defendant was informed by his counsel that no valid defense could be made to the action on the judgment brought in this state, and he therefore submitted to the judgment by default, and that defendant then believed, and now believes and insists, that he is not indebted to complainants in the amount of the judgment. This is not responsive, and is immaterial and irrelevant. Whether the defense to the judgment obtained in this state and set up in the previous part of this defendant's answer can avail him in this suit will be a question for determination at the hearing. My present view is that the decision in Minzesheimer v. Doolittle, 60 N.J.Eq. 394, 45 Atl. 611, relied on by defendant's counsel, does not protect a defendant who has had his day in court at law, and could have set up before that court the defense urged here. But decision as to the scope of this case on this point is not now involved.
Both parties succeeding in part, neither is entitled to costs.