The defendants Dinsmore and Sanford, and Shoemaker, impleaded with two others, have put in a joint answer. The plaintiff, on motion, obtained an order, under section 160 of the code, to strike out parts of the answer as “ irrelevant and redundantand from that order the said three defendants have appealed.
It is not claimed that the matter so stricken out is redundant, except for the reason and upon the ground that it is *88irrelevant; and consequently the question of the relevancy of such matter is alone to be considered.
The test, as I understand it, by which we may determine whether the denials or statements in an answer are material or relevant, is to inquire whether they tend to make or constitute a defense; and if they do so tend, they cannot be considered irrelevant.
. The first paragraph of this answer ordered to be struck out is in the words included in a parenthesis in the following sentence: “These defendants deny (that during the time in that behalf in the complaint stated, the defendants were engaged in business in Placerville in the state of California and elsewhere, as bankers and common carriers, as in the complaint alleged.”)
.The action is to recover an amount of money alleged to have been deposited by the plaintiffs on the 13th day of March, 1854, with the defendants, doing business as partners under the firm name of “Adams & Co.” at Placerville in California, and for which a certificate was then issued; and the statement in the complaint, intended to be answered by the paragraph above quoted, is “ That during the whole of the month of March, in the year 1854, the defendants were copartners, and as such were engaged and doing business in Placer-ville in the state of California and elsewhere, as bankers and common carriers, under the name, style and firm of Adams &? Company.”- The answer denies the statement in the complaint' substantially in the words of that statement. I doubt, whether a plaintiff can be permitted to say that a denial, in proper form, of any statement in his complaint is irrelevant, although such statement may not be necessary to constitute a cause of action. But this statement in the complaint is manifestly material. The defendants have intended of pretended to deny it. The denial maybe in form inartificial and insufficient, but can it be considered irrelevant ? I think not.
The second and third paragraphs of the answer, ordered *89to be be struck out, are as follows: “ And further answering, these defendants say, and each for himself says, that they have never been within the state of California, and have never personally transacted any business therein, and have no personal knowledge of what therein occurred.”
“And further answering, these defendants say they have no personal knowledge, and no information sufficient to form a belief, and therefore they deny at the time in that behalf in the complaint stated, or at any other time, the plaintiffs made the deposit of money in the complaint mentioned.”
From the allegation in the complaint, without explanation, the presumption would be that the money was deposited with the defendants in person, and that they had personal knowledge thereof, and consequently they could not be permitted to deny that allegation on information and belief without first rebutting that presumption, and I think the statement in said second paragraph is relevant and proper for that purpose.
By those two paragraphs the pleader has evidently intended to put in issue the alleged fact of the deposit, and, having first stated a reason why the presumption of personal knowledge should not arise against these defendants, he has then stated that they have no personal knowledge and no information sufficient to form a belief, and therefore they deny the allegation of the complaint. This is not the form of pleading contemplated by the code, (§ 149,) and possibly may be held insufficient to put the matter in issue, (although I am not satisfied it is so,) but how can it be said to be irrelevant, when the same matter, stated in a somewhat different form, would be not only relevant but good pleading ? I think these two paragraphs should not be struck out.
The fourth, fifth and sixth paragraphs ordered to be struck out neither deny any material allegation of the complaint nor state any new matter constituting a defense, and the order in-relation to them is clearly correct.
*90The seventh paragraph objected to and ordered to be struck out is in these words:
“And further answering, these defendants, on information and belief, say that, if any such certificate of deposit as in the complaint is alleged ever was issued, the same has been paid.”
It is insisted by the plaintiff that this statement is in the alternative and hypothetical, and therefore not permissible in pleading. Taking the statements of the answer, in relation to the alleged deposit and certificate, together, these three defendants in effect say : “ We were never in California, and have no personal knowledge of this transaction, and we have no information sufficient to form a belief whether the alleged deposit was ever made, or the certificate therefor issued; and we therefore say, on information and belief, that if such certificate ever was issued it has been paid.”
The defendant, under the code, may set forth by answer as many separate defenses as he may have. By the last quoted paragraph of this answer the defendants have intended to set up the defense of payment of the alleged deposit. Could they, under the circumstances, state that defense under oath in any other form ?■ And must they, for that reason, be deprived of the benefit of it ? The paragraph does not appear' to me to be inconsistent with the preceding parts of the answer, and in my opinion should not be struck out for any cause. Certainly payment, if properly pleaded and proved, will be a good defense to this action, and this statement of such defense, even if defective in form, cannot well be considered irrelevant.
The order appealed from should be modified in conformity with the views above stated; and neither.party should have costs against the other, either of the original motion, or of this appeal.
Hogeboom, J.I concur in the disposition of this case made by Justice Bonney. I have had some doubt in regard to the 7th paragraph, whether it should be permitted to *91stand. But under the special circumstances stated in the answer, and the difficulty of presenting the matter therein contained in any other form, without making it incapable of verification, I think it should not be struck out. But this decision must be regarded as confined to this particular case, and not to encourage or authorize this form of pleading in ordinary cases. Generally there is no difficulty in presenting the allegations in a pleading—especially those containing new matter—in the shape of direct and positive averments ; and I make these ■ suggestions lest I might be supposed to countenance in some way the form of hypothetical pleading, which I regard as highly objectionable.
Ingraham, J.I concur with Justice Bonney, in his opinion in this case, except as to the first paragraph ordered to be stricken out of the answer, at special term. That portion of the answer takes issue upon the words of the complaint, and while it might be found for the defendants, still it would decide no material question in the case.
I understand the rule of pleading, in this respect, to be that a defendant cannot in this way form an issue upon immaterial matters. The gist of the complaint, in this particular, is that the defendants were partners in California, either as bankers or common carriers. This is not denied, except in connection with other matters perfectly immaterial. For instance, suppose upon the trial it appeared they were not engaged in business otherwise than in Placerville, it would be very immaterial to the decision of the controversy, and yet the issue must be found for the defendants. So if it appeared that they were bankers but not common carriers, it would, in like manner, be immaterial. Several other instances could be given to show that the issue raised is immaterial. The pleader cannot group together so many matters and take issue upon all together in the words of the complaint. He should have denied that the defendants were engaged in business at Placerville or elsewhere, as bankers or common car*92riers, or should have admitted in part and denied as to the residue.
[New York General Term, November 17, 1860.Bonney, Hogeboom and Ingraham, Justices.]
Where it is apparent that an immaterial issue is raised, I think the paragraph should be stricken out.
With this exception, I concur in the proposed modification of the order appealed from.
Order appealed from, modified.