Part of the “second” answer was scandalous, another part of it-irrelevant, and the whole of it demurrable. Plaintiff’s motion to strike it out, in whole or in part, was denied because, first, a demurrer was the proper remedy, and that an entire count cannot be stricken out as irrelevant or redundant; second, because the defendant having amended his answer after the notice of motion was served, but witliin due time, and having omitted therefrom the whole objectionable count, the subject-matter of the motion was no longer before the court, and the motion was superseded. Goodman v. Robb (41 Hun, 605) is relied upon as authority for the first proposition. There was no scandalous matter in the pleading in that case, and the contention there was in respect to matter obviously inserted in good faith to protect the party’s supposed rights. The scandalous matter here was obviously inserted not to protect the defendant but to insult the plaintiff, and if the plaintiff had no remedy against it, except by demurring, and thereby confessing the truth .of the insulting matter, the defendant might secure a malicious triumph which the rules of pleading ought not to promote. The plaintiff ought to have a remedy fitted to relieve his grievance, and not be thrust aside because he did not ask for one which would have increased it. We think the rule laid down in Goodman v. Robb ought not to be regarded as authority for denying relief against scandalous allegations in a pleading. (See Carpenter v. West, 5 How. Pr., 53; McVey v. Cantrell, 8 Hun, 522.)
The defendant had but twenty days in which to serve his amended answer as of course. (Sec. 542.) He could not, by serving his original' answer by mail give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. (Sec. 198 and Throop’s note.) It follows that the amended *245answer was properly returned and the motion was not superseded and ought to have been granted.
Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.
Learned, P. J., and Mayham, J\, concurred.
Order reversed, with ten dollars costs and printing disbursements, and motion granted, without costs.