I feel constrained, under the rule, which I understand now to be well settled, in respect to pleadings under the Code, to grant this motion. Neither allegation involves a material fact, or tenders to the opposite party a material issue. The first is merely a conclusion of law. The defendants may, perhaps, be right in supposing their liability is limited to the costs upon the appeal; but if they are, the question can not be the subject of an issue of fact. It is a conclusion of law which will arise upon the facts in the case. The other allegations present issues wholly immaterial and unnecessary to a proper decision of the case. Whether' or not the undertaking was executed at the request and upon the indemnity of Stover, can not affect the liability of the defendants in this action, one way or the other. Nor can it, by possibility be material whether the property in question in the original suit was worth more or less than the mortgage to Stover (see Williams agt. Hayes, and The Rensselaer and Washington Plank Road Company agt. Wetsel, ante).
The motion must be granted; and although I am convinced that the irrelevant matter has been inserted in the answer through inadvertence, I feel obliged, in reference to the principles already established, and in view of the necessity of holding the profession to a more strict attention to those principles, in framing pleadings, to allow costs upon the motion also.