Miln v. Vose , 6 Sandf. 660 ( 1851 )

Mason, J.,

(with the concurrence of all the Justices.) — A preliminary objection was made by the defendants’ counsel, viz., that the plaintiff had obtained time to reply, and that it was too late therefore to move to strike out the answer. It has been held by this court, that a party wbo had replied to an answer could not move to strike out any part of it as irrelevant or redundant. (Corlies v. Delaplaine, 2 Sand. S. C. R. 680.) The 43d rule of the supreme court requires such a motion to be noticed before demurring or answering the pleading; and within twenty days from the service thereof. But a motion to strike out an answer altogether is different. I see no objection to its being made at any time before trial. If the answer is false or frivolous, the time of the court and jury ought not to be taken up in hearing it.

The answer in this case cannot be struck out, as sham, because itis sworn to. (Mier v. Cartledge, 4 How. Pr. R. 115; Maury v. Van Arnum, 1 Hill, 370.) Neither can it be stricken out as insufficient. The proper course is for the plaintiff to demur, unless it is so utterly frivolous that he ought not to be put to his demurrer. (White v. Kidd, 4 How. Pr. R. 68.) I do not think that this answer is of such a character, and for these reasons the motion should be denied.