#### Solomon H. Goodman, Appl’t, *v.*James W. Robb, Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

-1. Pleadirg — Libel and Slander — Answer by way op confession and avoidance — May not be hypothetical.

The second paragraph in the answer in an action for slander alleged substantially that if defendant spoke any slanderous words of, and concerning plaintiff, of the nature of those charged in the complaint, they were confidential and privileged, and were not spoken in malice. Plaintiff moved .that the second paragraph be stricken out on the ground that it was alternative and hypothetical; also that defendant be required to make it more .definite and certain. *Held,*that the rule which existed under the system of •pleading which preceded the Code was necessary under the present system, that a plea must either traverse or confess and avow. That the count under consideration assumed to set up matter in avoidance of the charge in the . complaint, but did not confess the charge, and was for that reason void.

12. Same — Remedy by demurrer not by motion to strike out.

It seems that a demurrer would be the proper remedy, but there is no authority under the Code for striking out an entire count of an answer on the ground of insufficiency.

.2. Same — Indefiniteness and uncertainty.

*Held,*that the pleading was justly chargeable with indefiniteness and uncertainty, but correction in those particulars was useless so long as it remained hypothetical.

Appeal from so much of an order of the Orleans special term, :as denies the plaintiffs motion to strike out the second paragraph :in the defendant’s answer, or to direct that it be made more definite and certain.

*William E. Hobly,*for appl’t., *John Cunneen*for resp’t.

mith, P. J.

The action is for slander. The answer originally contained several paragraphs separately numbered, all of which, except the first and second, have been stricken out. The .first paragraph is a denial. The second alleges, in substance, *243that if tbe defendant spoke any slanderous words of and concerning tbe plaintiff, of tbe nature of those charged in the complaint, they were confidential and privileged, and were not spoken in malice..

The plaintiff moved that the second paragraph be stricken out on the ground that it is alternative and hypothetical, and also that the defendant be required to make it more definite and certain, in several respects, and, among others, so as to indicate particularly whether the defendant admits or denies the speaking of the slanderous words charged in the complaint, and which of them he alleges were privileged or confidential, and what words spoken by him he intends to mitigate. That branch of the plaintiff’s motion was denied by the part of the order which is now appealed from.

The second paragraph is not only separately stated and num bered, but it contains what was obviously intended to be a statement of a separate defence. It is a distinct count of the answer. Plainly, it is hypothetical. Under the system of pleading that preceded the Code, it was a rule that a plea must either traverse or deny, or confess and avoid. (1 Ch. Pl., (14th Am. Ed.) p. 526). The same rule has frequently been applied under the Code, *(Lewis*v. *Kendall,*6 How. Pr. R., 59; *Buddington*v. *Davis, id.,*401). The rule is as necessary under the present system, as it was under the old, to prevent irrelevancy, uncertainty and useless prolixity in pleading. The count under consideration assumes to set up matter in avoidance of the charge in the complaint, but it does not confess the charge. For that reason it is bad.

The only question is whether the remedy for a defect of that nature is by motion to strike out. The question whether a demurrer would lie, is not before us, and therefore' we do not decide it; but it would seem that that remedy is available. In *Lewis*v. *Kendall, (sup.)*and *Buddington*v. *Davis (sup.)*a demurrer was sustained. The Code allows a demurrer to a defence consisting of new matter, on the ground that it is insufficient in law upon the face thereof. (Code C. P., §. 494.) “Insufficiency” in a pleading is not defined by the Code. An answer that presents no defence, and does not take issue with the complaint, may well be regarded as insufficient. An *irrelevant*pleading, that is, one which has a substantial relation to the controversy between the parties to the suit, has been characterized as “ insufficient.” (Moak’s Van Santvoord’s Pl., (3d. Ed.) p. 772.) So, too, it has been said, a frivolous reply or answer, may* if; the party prefer, be demurred to as insufficient, although the Code gives a more summary remedy by an application for judgment. *(Id.)*But we know of no authority under the Code, .for striking out an *entire*count of an answer, on the ground, ok insuffi-, ciency. This is not the case of a sham defence, under section *244538, of the Code, nor a motion to strike out irrelevant or redundant matter provided for by section 545. An entire count cannot be stricken out as irrelevant or redundant. *(Fasnacht*v. *Stehn,*53 Barb., 650.)

In *Wies*v. Fanning, (9 How. Pr. R., 543,) a part of an answer which was held to be hypothetical, was stricken out, but the same portion was held, also, to be irrelevant and redundant. On that ground, the remedy by motion was appropriate. Irrelevant and redundant matter cannot be demurred, to but the objection must be taken by a motion to strike out. *(Moak’s Van*Santvoord, p. 771.)

The motion in the present case was not only to strike out the second count, but also to require it to be made more definite and certain. That it is justly chargeable with indefiniteness and uncertainty is apparent, but to correct it in those particulars would have been useless so long as it remained a hypothetical or *de bene esse*pleading.

We think the portion of the order appealed from, must be affirmed, but as the pleading is bad, without costs and with leave to the plaintiff to demur, if he thinks proper, in ten days.

Barker & Bradley, JJ., concur; Haight, J., not sitting.

So ordered.