Appellate Division of the Supreme Court of New York, 1909

Cleminshaw v. Coon

Appellate Division of the Supreme Court of New York · Decided December 30, 1909 · Cochrane

136 A.D. 160; 120 N.Y.S. 181; 1909 N.Y. App. Div. LEXIS 4292

Counsel

William H. Hollister, Jr., and' George II. Taylor, Jr., for the appellant., G. B. Wellington, for the respondent.

Cases that cite this one

4 later published cases cite this decision.

Margos v. Gonzales (New York Supreme Court 1962)
Ames v. Pennsylvania Railroad (New York Supreme Court 1959)
Yeshiva University v. Edelman (New York Supreme Court 1958)
Goldstein v. Goldstein (N.Y. 1940)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Cochrane, J.:

The matter sought to be stricken from the complaint is claimed to be justifiable as constituting a motive for the alleged fraudulent conspiracy. Whether.or not it would be admissible as evidence on, the trial, it clearly has no place in the pleading. A complaint should contain a plain and concise statement of the facts constituting the cause of action and not the evidence- of those facts. This complaint was complete before the allegations which are the subject . of criticism. ' The insertion of these evidentiary facts in the complaint does not affect the question of their admissibility as evidence at the trial. If admissible as evidence, they do not lose that quality because of an omission to plead them, and good pleading requires that they should not be. thus stated.

. It is quite true that the mere presence of irrelevant or redundant matter in a pleading does not justify a motion to-strike such matter from the pleading-under section 545 of the Code, of Civil Procedure. It must -also appear that the moving party is “ aggrieved' thereby.” The tendency of recent decisions, however, is to the effect that a party is aggrieved within the meaning of said section 545 when such irrelevant or redundant matter appears in a plead*163ing which requires an answer or reply. (Chittenden v. San Domingo Improvement Co., 125 App. Div. 855; Hamilton v. Hamilton, 124 id. 619; Schroeder v. Post, 3 id. 411; Schroeder v. Young, 49 id. 640.) As stated in the case last cited when a plaintiff pleads his evidence the defendant is “ a person aggrieved ” by such statements of evidence when he is required to admit, deny or ignore them in an action at law. It may.be that he cannot deny them and a plaintiff is not at liberty to thus embarrass his adversary or to place him in the dilemma of determining for himself at his peril whether he should deny allegations which are clearly immaterial as matter of pleading or whether he may safely ignore them, and when such is the case the defendant is aggrieved and may require such immaterial allegations to be stricken from the complaint.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with.ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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