p. 502plaint stating that the accident happened because of the negligence of the defendant, and a further allegation that the Statute of Limitations has run against the plaintiff’s right to maintain an action in tort will he stricken out as irrelevant. ,
The latter allegation should be stricken out both as a conclusion of law and because, as the plaintiff is suing on an express contract, the fact that an action for tort.is barred is immaterial; though, it seems, that the Appellate Division would not reverse an order refusing to strike out said allegations on this ground alone, as motions to strike out are not favored unless possible injury be apparent. . >
But the allegations as to the negligence of the defendant should be stricken out as they inject into the case elements which may prejudice the defendant at trial.
Hibschbebg, P. J., dissented.Appeal by the defendant, the Standard Oil Company of New York, from an order of the Supreme Court, made at,the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of February, 1910.
Chester 0. Swain, for the appellant.
Martin T.. Mantón, for the respondent.
The defendant appeals from an order denying its motion to strike out of the complaint certain allegations thereof as irrelevant. The cause of action set forth in the complaint is founded on contract. Briefly stated, it is as follows: The plaintiff was employed by the defendant and, during the course of his work, was injured by the caving in of a well in which he was working; he gave the defendant a general release from all claim of liability in consideration of án agreement by the defendant to retain him in its service for life and to pay him the same rate of wages as he received at the time of the accident, and that after performing this agreement for about three years the defendant broke the contract by discharging the plaintiff and failing to continue the payments.
The specific allegations complained of as irrelevant are that the plaintiff was injured, that the accident happened “ because of the carelessness and negligence of the-defendant,” and a further allegation that the Statute of Limitations has run against his right to
p. 503maintain an action in tort. This latter allegation is clearly irrelevant, as’ it is but a conclusion of law at most, and should not have been pleaded by the plaintiff, and for the further reason that, as the plaintiff is suing on an express contract, the time in which an action might have been brought for a tort has no apparent relevancy. Yet, as motions of this kind are not favored unless possible injury to the moving party be apparent
(Dinkelspiel v.
N. T. Evening Journal Co., 91 App. Div. 96 ;
Hatch v.
Matthews, 85 Hun, 522 ), we should not feel justified in reversing the order of the Special Term on this specific ground alone. It appears that the learned court at Special Term thought that the allegation as to the “ carelessness and negligence of the defendant ” was properly in the complaint as showing the consideration of the contract on which the plaintiff sues, and was, therefore, not irrelevant. In this we think, that court was in error. If the plaintiff proves the contract on which he sues, that is, an agreement by the defendant to retain him in its service because of the execution by him of a general release, it will not be requisite for him to prove that he had in fact a cause of action for negligence against the defendant when he gave the release, for the release on his part was in fact the legal consideration of the agreement of the defendant, and not the cause of action released.
(Barnes v.
Ryan, 66 Hun, 170 ;
Feeter v. Weber, 78 N. Y. 334 ;
Sears v.
Grand Lodge A. O. U. W., 163 id. 374 ;
Andrews v.
Brewster, 30 N. Y. St. Repr. 329 ;
124 N. Y. 433 .) Unless the defendant should seek to avoid the contract on the ground of fraud, the question of the cause of action released would not be relevant. The defendant has not yet answered, and there is no. present occasion for the plaintiff to anticipate sucha defense. Perhaps the presence of this allegation in the complaint may be of no substantial injury to the defendant, yet, at the same time, it may serve as a peg upon which the plaintiff may seek to hang a right ‘to offer evidence thereon, and thereby partially convert a trial as to a contract into one as to a tort, and thus create an atmosphere in the case which may influence the jurors, unconsciously, in determining the issue as to the contract. We think that the defendant is within its rights in insisting that it shall not be exposed on the trial to such a contingency.
The order appealed from should be reversed, with ten dollars
p. 504.costs and disbursements, and the motion to strike out should he granted, with ten dollars costs.
Jenks, Burr and Rich, JJ., concurred ; Hirsohbérg, P. J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion to strike out granted, with ten dollars costs.