Kurtz & Dunbar v. McGuire.
Hew matter in an answer, which, although it may constitute a good cause of action, is, palpably, no defence, either total, or partial, nor a counterclaim as defined by the Code, may be struck out on motion, as an irrelevant defence,
At Special Term,
April 6, 1856.
Before Bosworth, J.
The complaint states a sale and delivery by the plaintiffs to the defendant of liquors, for cash, at an agreed price of $890.20, and claims a balance due of $208.06.
The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay, the'price named, and averred that they were worth about $200, and no more. It then proceeds thus:—
“ And this defendant further says, that on or about the 20th of October, 1856, the said plaintiffs, without the knowledge or consent of the defendant, took and appropriated to their own use eighty-seven and a half gallons of whiskey, belonging to this defendant, of the value of $2.75 per gallon, which this defendant claims to offset against the plaintiff’s claim herein, and also five gallons of gin, worth.the sum of $1.50 per gallon, and this defendant denies that he is indebted to the plaintiffs in any sum or amount, wherefore he demands that the complaint herein be dismissed, with costs.”
The plaintiff moves to strike out this part of the answer, as “irrelevant and redundant,” because it is not matter constituting a counterclaim, or a defence, either total or partial.
George O. Hulse, for plaintiffs.
Patterson & Sheehan, for defendant.
Bosworth, J.
An irrelevant defence, as well as an irrelevant answer may be stricken out on motion. (Code, section 152.) The fact that the plaintiffs wrongfully took and converted to their own use property of the defendant, constitutes a good cause of action. *661As a defence is irrelevant, because it cannot be made available in this action, it does not give a right of set-off. (2 R. S., 354, § 32, sub. 1.) It does not create a demand arising on contract.
It does not constitute a counter-claim, because it does not arise out of contract, nor out of the transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, nor is it connected with the subject of their action. The motion must be granted.