This is an appeal from an order striking out the fourth paragraph in defendant’s answer as irrelevant and redundant. It is not redundant, because it is not a repetition of anything else in the answer. There is no authority now in the Code for striking out an answer as “irrelevant.” That word has been omitted, as being equivalent to “frivolous.” Sections 537, 538, and note to last section. It is only a “sham” answer, which can be stricken out, and that means a false answer. But irrelevant matter may be stricken out, (section 545;) that is, matter which is irrelevant to the cause of action, or to the defense which the party attempts to allege. This fourth paragraph sets up damages arising from the breach by the plaintiff of the contract of sale alleged in the complaint, and in the making of which contract the complaint avers that defendant made the false representations. This is “the semblance of a cause of action.” Whether it was a valid counter-claim within the Code is a question which should be determined either by demurrer ■or by notice on the trial, and not by a summary motion to strike it out as redundant and irrelevant. “The sufficiency of a defense cannot properly be determined on a motion to strike out a pleading.” Walter v. Fowler, 85 N. Y. 621. “The power given to a court to expunge matter from a pleading upon motion for irrelevancy refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading. ” Hagerty v. Andrews, 94 N. Y. 197. The plaintiff’s counsel in his brief says that, if such a cause of action exists, defendant may recover upon it; but that it constitutes no defense in this action, which is in tort. But the cases above cited show that, if this answer is no defense, the remedy is by demurrer or by motion on the trial, and not by this summary motion. The order should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.
Landon and Ingalls, JJ., concur.