Columbia Pictures Corp. v. Kadel , 170 N.Y.S.2d 666 ( 1958 )

Order denying plaintiff’s motion to strike out the Ninth defense contained in the answer of the individual defendants, except of defendant Stiehman, is reversed and the motion is granted, with costs to appellant. The complaint in this stockholder’s derivative action charges the diversion and waste of corporate assets. The Ninth defense attacks the motives of plaintiff in bringing the action and is a verbose complicated recitation charging a personal vendetta between plaintiff and the main individual defendant, expounding upon the past history of other litigations not pleaded as res judicata, alleging admissions made in former suits, accusing plaintiff of perjury in other actions, alleging plaintiff’s fraud in other unrelated matters, etc. Special Term, although finding this defense was “not directly concerned with the merits' of the charges contained in the complaint”, concluded that it presented “equitable principles” which might prevent plaintiff from maintaining the suit. The Ninth defense is not only insufficient in law (Pollitz v. Wabash R. R. Co., 150 App. Div. 709, 713; Johnson v. King-Richardson Co., 36 F. 2d 675), but additionally is intolerable in its present form. Clearly proof of most of the allegations would be inadmissible at a trial. The defense is a congeries of irrelevant, evidentiary, prejudicial, conclusory and argumentative material that should not have been permitted to stand.

Concur — Botein, P. J., Rabin, Valente, McNally and Stevens, JJ.