Lukes v. Lowenfels — 210 A.D. 869

Majority

p. 869

First Department,

November, 1924.

Rose Lukes, Respondent, v. Simon Lowenfels, Appellant, Impleaded with Others, Defendants.

Headnote

Negligence — action by woman for personal injuries — allegations in complaint as to injuries to unborn infant stricken out as irrelevant.

Appeal by the defendant from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on September 1, 1923, denying defendant’s motion to strike out certain paragraphs of the complaint as irrelevant.

The order should be reversed because the four paragraphs which were sought to be stricken out as irrelevant and redundant do not relate in any manner to the physical injuries alleged to have been inflicted on the plaintiff. The paragraphs recite only injuries inflicted upon the infant while en ventre sa mere and do not by any averment connect such injuries with any physical condition affecting the plaintiff herself. The order should be reversed, with ten dollars costs and disbursements to appellant, and the motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs. Present — Clarke, P. J., Dowling, Smith, Merrell and McAvoy, JJ.; Merrell, J., dissents. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs.