#### Jacob Carpenter, plaintiff and respondent, *vs.*William J. Bell *et al.*defendants and appellants.

1. In an action to recover moneys alleged to be due to the plaintiff from the defendant, a defense alleging a mere notice from a third person to the defendant, that he was owner of such moneys, and any cause of action therefor, demanding payment to himself by virtue of an assignment from the plaintiff, is irrelevant.

2. X defense setting forth supplementary proceedings taken against the plaintiff by a judgment creditor, in which the plaintiff and the defendant had been" forbidden to -transfer, dispose of or interfere with the property of the plaintiff, is not irrelevant.

3. If the allegations of a defense are pertinent to the controversy, their sufficiency is only to be tested by demurrer or on the trial. A defense set up in an original answer is not to be struck out as irrelevant, merely because the matter of it arose after suit brought.

(before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 7.1863;

decided November 28, 1863.

This was an appeal from an order striking out the third and fourth defenses from the defendants’ answer.

The action was brought against William J. Bell, Robert *712Courtney and Samuel A. Mills, to recover from them $8200, alleged .to be due to the plaintiff from them, for stocks sold by them as his brokers.

The answer of the defendants admitted that there was a balance of $5528.70 due from them, upon the transactions stated in the complaint. As a third and fourth defense, it alleged in substance that about the 12th day of June, 1862, a Mr. Cowdrey duly recovered in this court a judgment against the plaintiff in this action, for the sum of $1401.99 ; which was duly docketed, and a transcript thereof filed in the office of the clerk of the city and county of New York. Thereupon Cowdrey duly issued an execution to collect such amount, to the sheriff of such city and county, within which the said Jacob Carpenter then either resided, or had a place of business. Such execution was, sixty days after its issuing, returned by such sheriff wholly unsatisfied. Thereupon after-wards, on the 9th of September, 1863, it was made to appear on behalf of the said Cowdrey, to one of the justices of this court, (Chief Justice Boswobth,) that such judgment had been so recovered, and such execution issued and returned as before mentioned. That such judgment was still wholly unsatisfied, and Carpenter still resided within the city and county of New York; and further, that the defendants (Bell and Courtney) were indebted to Carpenter, or had property of his in their possession, to an amount exceeding $10; whereupon such justice, on the said 9th day of Sept. 1863, duly made an order, requiring the defendants and Carpenter to appear and answer on oath concerning the property of Carpenter, at the chambers of this court before such justice, at a time specified in such order ; and forbidding the defendants and Carpenter to make any transfer or other disposition of or any interference with the property of Carpenter ; of which order these defendants and Carpenter had due notice ; and such order still remained in force. Whereby Cowdrey claimed to acquire a specific lien upon the demand set forth in the complaint in this cause, and solely entitled to collect the same, and. reduce the same into possession ; and that the right of action of the *713said plaintiff for the same, or any part thereof, was and is wholly suspended.

As a fourth defense, such answer alleged in substance, That on the 10th day of September, 1863, a Mr. Markham, of the city of New York, caused to be served on these defendants *a notice,*that he (Markham,) *was the owner of the moneys*for the recovery of which this action is brought, and also of any and all causes- of action the plaintiff might have against the defeüdants ; and notifying the defendants to pay over such moneys to him, or his authorized attorney, and to no other person 3 as he was the owner of the same, by virtue of a sale and assignment to him by the plaintiff Carpenter.

The plaintiff moved to strike out such third and fourth defenses, as irrelevant and frivolous, and also that Markham be substituted as plaintiff.

The motion was heard before Mr. Justice Barbour, at a special term, October 1, 1863, who granted it as to the pleading, without prejudice to the defendants moving for leave to file a supplemental complaint, by way of a cross-action, setting up the same matters.

From this order the defendants appealed-.

*Samuel G. Courtney,*for the defendants, appellants.

I. The order should be reversed, as both the “third” and “ fourth ” defenses are well pleaded.

1. The alleged matters could not be taken advantage of except by answer. *{Gode,*§§ 144, 147, 148, 150, *subd.*2.)

2. The “ third defense ” is an equitable as well as legal one.

3. The fourth defense existed at the time the answer was put in, and was properly pleaded.

4. Although the plaintiff, in his motion, asked for the substitution of Markham as plaintiff, he waived that in the argument, and therefore as the case stood at the time the answer was put in, and as it stands now, the fourth defense was and is properly pleaded.

II. It is not the rule that any matter arising after the commencement of the action, and before answer, can only be *714pleaded by special leave of the court. The Code intended that any defense existing *at the time*the defendant answers, can be set up by way of answer. *(Code,*§§ 150,177. *Willis*v. *Chipp,*9 *How.*568. *Williams*v. *Hernon,*16 *Abb.*173.)

III. The plaintiff could not, under the third defense, make this motion.

1. The plaintiff was forbidden by the order referred to in the third defense, from making any transfer or other disposition, or any interference with his property.

2. Such a motion is a direct violation of the said order, and an avowed contempt in the presence of the court, making such order.

*A. R. Dyett,*for the plaintiff, respondent.

I. The matter pleaded arose after the commencement of suit, and could only be pleaded by way of supplemental answer by leave of the court. *{Gode,*§ 177.)

II. The matter was only a partial defense, and a defense must be to the whole cause of action.

III. The defenses, at best, were “transfers of interest” after suit commenced. *{Gode,*§ 121.) They were not defenses to the action, any more than they would have been before the Code.

IY. The supplementary order set up, created at best but an *inchoate lien*in the creditor. No final order had been made. Could the court at nisi prius direct a verdict for the defendants on those issues ? Clearly not, and therefore it is no defense.

Y. The defendants are not without remedy. The proper course was for the defendants to go on and try the action, and if a recovery was had, to apply to the court by.motion to stay the "collection of the judgment until the supplementary proceedings were at an end, or they might be relieved under section 122 of the Code, .

YI. But the supplementary order has since been vacated and set aside, and the court ought not to entertain this appeal.

*715By the Court, Bosworth, Ch. J.

Appeal- by the defendants from an order dated Oct. 1, 1863, striking out the defenses marked *third*and *fourth,*as irrelevant and frivolous.

There is no provision in the Code, authorizing a defense to be stricken out as frivolous. *Sham*and *irrelevant*answers may be stricken out. *(Gode,*§ 152.) A plaintiff may *demur*to an answer containing new matter, where upon its face it does not constitute a counter-claim or defense, and a plaintiff may demur to one or more of such defenses. *(Gode,*§ 153.) If an answer be *frivolous,*the plaintiff may move for judgment on that ground. *(Gode,*§ 247.) If the motion be granted, the answer is not stricken out, but remains on the record. *(Briggs*v. *Bergen,*23 *N. Y. Rep.*162.)

The order can be upheld if these defenses are *irrelevant,*but not otherwise. A defense is irrelevant which -has no substantial relation to the controversy between the parties to the action. *Kurtz*v. *McGuire,*(5 *Duer,*660,) is an illustration. The allegations constituting the defense marked *fourth,*even if true, have no substantial relation to the controversy between the parties. They do not tend to show any averment of the complaint to be untrue, nor present any ground for denying to the plaintiff a recovery of the whole amount claimed. Any mere *notice*that third persons may have given to the defendants, is wholly extraneous to the controversy, and is clearly irrelevant.

The allegations forming the *third*defense, are *pertinent*to . the controversy". "Unless their effect be avoided by facts not appearing on the record, they show *prima facie,*that R. A. Cowdrey has acquired a lien on the amount due from the defendants to the plaintiff to the extent of the amount of his judgment. But until an order is made that the defendants pay such amount to Mr. Cowdrey, his right to receive it from the defendants is not absolute. The defendants and Carpenter are enjoined from making “ any transfer, or other disposition of or interference with the property of said Carpenter,” assuming the order to be correctly described in the answer.

Whether this does or does not interfere with the plaintiff’s *716and defendants’ right to litígate the suit and determine, by a verdict, the extent of the defendants’ liability, need not now be decided. If an order to pay Cowdrey shall then have been made and be in force when a verdict shall be rendered, it will protect and prohibit the defendants from paying *pro tanto*to Carpenter. That there are not enough allegations to make a perfect or partial defense, may render it demurrable, but this does not make it irrelevant. The allegations are relevant or pertinent, but insufficient, perhaps, to constitute a defense. Whether they constitute a defense, must be determined upon a demurrer to this defense, or at the trial.

As to the suggestion .that the facts constituting this defense, arose since suit brought, and can only be set up on a supplemental answer on leave of the court first had, it may be replied that no answer had been put in prior to the one in question. There is no answer to which a supplemental one can be made. The defense is none the less relevant, even if it be true that the answer is irregular because put in without leave of the court. All that can be said in that view of the law is, that the answer was interposed irregularly, but not that the matter in it is, for that reason, irrelevant.

There is another answer to the suggestion. In actions- at law, prior to the Code, a defendant could plead as a matter of course and of right, any defense arising after suit brought and before the time to plead had expired. But instead of being pleaded *in bar,*it was plead to the further maintenance of the suit. *(Covell*v. *Weston,*20 *John.*414. *Boyd*v. *Weeks,*2 *Denio,*321, 322. 3 *Chit. Pl.*906, 913.) This, however, was a matter of form, rather than of substance. If true and sufficient, it prevented a recovery by the plaintiff.

The same rule obtained in the Court of Chancery. A defendant could state in his own answer matter arising before it was put in and after suit brought. *(Lyon v. Brook,*2 *Edw. Ch.*110.)

The question in cases arising under the Code, was decided the same way, by an able judge, in *Willis*v. *Chipp,*(9 *How. Pr.*568.) Ho adverse decision has been .cited. The defense could not be struck out as irrelevant, merely because it arose after suit *717"brought. It was discretionary with the judge to refuse to permit Markham to he substituted as plaintiff.

So much of the order as strikes out the *third defense*as irrelevant, should be reversed ; in other respects it should be affirmed, without costs to either party.