Oppenheim v. Long Island Railroad , 197 N.Y.S.2d 816 ( 1960 )

Samuel Rabin, J.

This is a motion pursuant to rule 103 of the Rules of Civil Practice to strike the ‘1 First Separate and Complete Defense ” and the “ Second Separate and Complete Defense ” in defendant’s answer on the ground that the matter contained therein is frivolous, irrelevant, redundant, unnecessary, impertinent, or scandalous and may tend to prejudice, embarrass or delay the fair trial of the action.

In essence the defenses are that at the time of the injury the infant plaintiff was not connected with or employed upon the railroad and he was walking upon or along the defendant’s railroad tracks at a place other than where they are laid across or along streets and highways, and that, therefore, the plaintiff violated sections of the Railroad Law of the State of New York and of the Penal Law of the State of New York.

Motions of this nature are addressed to the sound discretion of the court. The allegations of the first separate and complete defense contained in the answer have a bearing on the subject matter of the action and are a proper subject of proof. The presence of the matters alleged therein involve no prejudice and the allegations are not irrelevant to the cause of action pleaded.

However, the allegations contained in the second separate and complete defense contained in the answer charge the plaintiff, an infant under the age of 14 years, with a crime. The offense charged, when committed by an infant under 16 years of age, is not a crime. (People v. Murch, 263 N. Y. 285.) With respect to this defense the court is of the opinion that it should be struck from the answer.

Accordingly, the motion is denied with respect to the first defense and granted with respect to the second defense. Settle order.