Philippines Co. v. Kimball — 57 A.D. 19

Majority

p. 19

The Philippines Company, Appellant, v. Amos S. Kimball and Others, Respondents.

Headnote

Conspiracy to destroy a transportation business — allegations as to acts of the defendants, done befoi'e plaintiff ’ s incorporation a/rvd in fraud of the United States, are irrelevant.

Where an action is brought by a corporation charging the defendants, one of whom was the assistant quartermaster-general of the United States army and depot quartermaster at the city of New York, having charge of the forwarding of supplies for the United States army to Cuba and the Philippine Islands,

p. 20

with having conspired to destroy the plaintiff’s business of transporting freight between the United States and the Philippine Islands, allegations contained in the complaint of acts done before the incorporation of theplaintiff and of fraud committed "by the defendants upon the United States government are irrelevant and should be stricken out.

Appeal by the plaintiff. The Philippines Company, from two orders of the Supreme Court, made at the. Kings County Special Term, each entered in the office of the clerk of the county of Kings on the 24th day. of September, 1900, striking out certain allegations of the complaint as irrelevant, redundant and scandalous.

Benjamim, Seharps, for the appellant.

Jesse Stea/rns, for the respondent Kimball.

Wheeler PL. Peehham, for the respondents Ogilvie and O’Brien.

"The plaintiff sues the defendants for conspiracy in combining to destroy its business' of exporting, commission and forwarding between the United States and the Philippine Islands. The complaint alleged that the plaintiff had.made proposals to the government to ship some of its.supplies to the islands; that the defendant Kimball is assistant quartermaster-general and depot quartermaster at the city of New York, having charge of the purchase, shipment, and forwarding of supplies for the United States army to Cuba and the Philippine Islands; that he and the other defendants “ entered into a conspiracy, acting in concert with each other, to unlawfully hinder, deprive and prevent the plaintiff from transporting any and all freight from New York to Manilla and the Philippine Islands, and to ruin and destroy its business and commercial standing, trade and credit, and to hinder and prevent the plaintiff in the exercise of its lawful trade and calling,, and to drive the plaintiff out of the business of transporting government-freight and to injure and effect the destruction and loss of the plaintiff’s custom, business, trade and-profits for the purpose of obtaining such custom, business, trade and; profits- for themselves, and for the "corrupt and collusive purpose also of obtaining and dividing among themselves. illegal profits "to be obtained from the government of the United States by means of

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corrupt, collusive and unlawful acts and agreements on the part of said defendants and each of them, and to which profits they were not and would not he lawfully entitled; and this plaintiff further alleges, upon information and belief, that what was said and done by them or either of them-as hereinafter related was in furtherance of said conspiracy and objects and to accomplish said purposes.”

There were allegations of specific acts of the defendants whereby they had defrauded the government in the price paid for the transportation of supplies, and which, the plaintiff alleged, injured and destroyed its business. The defendants moved to strike out the latter allegation as irrelevant, redundant and scandalous; the court granted the motion, and the plaintiff appeals.

It is not necessary to set out in detail the portions of the complaint thus stricken out, as they are palpably irrelevant. Some of them refer to acts done before the incorporation of the plaintiff, and others alleged fraud" upon the government; others set out specific acts of that character. Such allegations have no proper place in the complaint. They do not establish fraud upon the plaintiff’s rights. Evidence that the defendant Kimball has defrauded the government would not assist the plaintiff to a recovery. The gravamen of the plaintiff’s cause of action is the damage to the plaintiff as the result of a' conspiracy of the defendants against it. I cannot discover any connection between the allegations which hava been stricken out and the alleged damage to the plaintiff. The court ordered the service of an amended complaint in accordance with the order. This was purely a matter of discretion, which we tliiuk was fairly exercised.

The order should.be affirmed, with costs.

All concurred, except Sewell, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.