Majority
p. 905Frank Drake, Respondent, Appellant, v. Henry Hornblower and Others, Appellants, Respondents, Impleaded with Harry Gay, Irving J. Sturgis and R. Linzee Hall, Defendants.
Headnote
Pleading — striking out allegation.Appeal by defendants, Henry Hornblower and others, from an order denying their motion to strikeout paragraphs 15,16, 17, 20, 21,24 to 28, inclusive, and parts of paragraphs 18 and 19 of the complaint as irrelevant and redundant, and by plaintiff from so much of the order as requires him to make paragraph 20 more definite and certain.
Some of the allegations sought to be stricken out are clearly irrelevant, some are redundant and the others are evidentiary. The order should, therefore, be reversed, with ten dollars costs.and disbursements, on the appeal by Hornblower and others, and motion granted, with ten dollars costs, but with leave to plaintiff to serve an amended complaint alleging plainly and. concisely the facts, but omitting the evidence (See De Cordova v. Sanville, 165 App. Div. 128 , dissenting opinion of Ingraham, P. J., on which Court of Appeals reversed, 214 N. Y. 662 ) with respect
p. 906
to the contractual and business connections and relations between the stock brokerage firms of Hornblower & Weeks and Gay & Sturgis, from which plaintiff claims that the members of the former firm became parties to or bound by the contracts between the latter firm and its customers. Inasmuch as paragraph 20 will be stricken out, it is unnecessary to consider plaintiff’s appeal and it is dismissed, without costs. Present — Clarke, P. J., Laughlin, Scott, Smith and Shearn, JJ. On defendants’ appeal order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend as stated in opinion. Plaintiff’s appeal dismissed, without costs. Order to be settled on notice.
Cases cited
- de Cordova v. Sanville 214 N. Y. 662 p. 905