#### Minnie A. Indelli and James Conforti, Doing Business under the Firm Name and Style of Indelli & Conforti Co., Respondents, *v.*William C. Lesster, Appellant.

First Department,

February 19, 1909.

Evidence — parol agreement collateral to written contract — when parol agreement may be alleged as defense to action upon written contract — practice — pleading — striking out irrelevant matter.

The rule excluding parol evidence contradicting.or modifying a written agree-. ment does not apply to,separate, independent or collateral undertakings, or in cases where the original contract was verbal and entire and".only a part was reduced to writing.

Thus, where the plaintiffs set out a written contract requiring them to perform work on premises leased to the defendant and allege a breach thereof by reason of the fact that persons to whom the defendant sublet prevented the performance of the work, the defendant, as a defense, may allege that prior to the execution of the contract the plaintiffs were informed that the defendant was not in possession, and that as an inducement to the making of the contract they agreed to obtain possession by their own efforts and at their own expense for a • compensation in excess of the value of the work to be done.

*549The plaintiffs’ agreement to obtain possession at their own expense was an undertaking collateral to the written contract which the defendant would be entitled to prove as a defense, and hence the allegations should hot be stricken out as irrelevant.

Motions to strike out portions of a pleading as irrelevant and redundant are not favored, and will be denied unless the court can see clearly that they have no possible bearing .on the subject-matter of the litigation. Such motion is addressed to the sound discretion of the court.

Appeal by the defendant, Williaiñ 0. Lesster, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9tli day of November, 1908, striking out part of the defendant’s answer as irrelevant.

*Edward S.*Clinch, for the appellant.

*Morris*Height, for the respondents.

McLaughlin, J.:

Action to recover damages alleged to have been sustained by reason of the refusal of defendant to allow plaintiffs to proceed with the execution of a written contract for work on real estate. The contract is annexed to and made a part of the complaint.

From the complaint it appears that the defendant was the owner of a tax lease of the premises in question and on May 1, 190?, he sublet the premises to one' Ferber for one year; that in contemplation of the erection of a new building on the premises he, on the 10th of March,. 1908, extended the term of the lease; that on the 3d of April, 1908, the plaintiffs and defendant entered into the contract in question; and on the following day the plaintiffs went to the premises and found the same? in possession of other persons who asserted their right to the same and thereby prevented the plaintiffs from performing the work which they had contracted to do. ' -

After denying the material allegations of the complaint the defendant, as a defense, alleged that prior to the execution of the contract referred to in the complaint, the plaintiffs were informed by defendant and knew that he was not in possession of the premises referred to, but that one Byan was, who was holding the same *550adversely to the defendant, for which reason the defendant and his tenant Ferber would be unable to put the plaintiffs in possession for the purpose of carrying out the contract; that as an inducement to the making of the contract the plaintiffs agreed at once to obtain possession by their own efforts and at their own expense, and to complete the work mentioned in the contract on or before a day specified; that the price agreed to be paid was largely in excess of the value of the work to be done, for the reason that each of the parties knew that the defendant was not in possession and could not obtain possession before the time fixed for the completion of the work to be done; and that the amount agreed to be paid in excess óf the value of the work was intended to compensate the plaintiffs for their services in obtaining possession and for any delay or expense to which they might be subjected in so doing.

The court at Special Term struck out of the answer the foregoing allegations upon the ground that they were irrelevant and redundant, and the defendant appeals.

If these allegations in the answer be true, then it appears that the whole contract was not reduced to writing and defendant has a right to prove the whole contract. The agreement o.n the part of the plaintiffs to obtain possession at their own expense was a collateral undertaking, the terms of which defendant is entitled to prove as a defense to the claim for damages. The rule prohibiting parol evidence varying or modifying a written agreement does not apply to a separate, independent or collateral undertaking, or where the original contract was verbal and entire and a part only was reduced to writing. *(Chapin*v. *Dobson, 78*N. Y. 74.) If the defendant was not in possession and the plaintiffs knew it at the time the contract was made, and the latter agreed to obtain possession at their own expense, this jvould be a proper matter in defense of an action to recover damages based upon the fact "that they could not obtain possession.

Motions to strike out portions of a pleading as irrelevant or redundant are not favored and will be denied unless the court- can clearly see that the allegations- sought to be stricken out have no possible bearing on the subject-matter of the litigation. *(Kavanaugh*v. *Commonewalth Trust Co.,*181 N. Y. 121.) Such applh cations are addressed to the sound discretion of the court and *551granted only where it is evident that if denied, the moving party will be prejudiced *(Howard*v. *Mobile. Co. of America,*75 App. Div. 23), and denied unless it is apparent that the adverse party will not be harmed. *(Rockwell*v. *Day.,*84 App. Div. 437.)

I am of the opinion that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to strike out denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.