First Presbyterian Church v. Kennedy — 72 A.D. 82

Majority

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First Presbyterian Church in New York City, Appellant, v. Henry Van Rensselaer Kennedy, as Administrator, etc., of Rachel Lenox Kennedy, Deceased, Respondent.

Headnote

Motion to make a complaint moré definite and certain — to state whether a contract was oral or in writing — whether any resolution was adopted by the trustees of a church—the circumstances moving a party to enter into a contract maybe pleaded.

Where the complaint in an action brought to enforce the specific performance of a contract, between the plaintiff, a church corporation, and the defendant’s intestate, by which the intestate, in order to induce the plaintiff to refrain from consolidating with another church, agreed to pay the plaintiff the sum of

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$4,000 annually during her life and to secure the payment of a like sum out of her estate, as long as the church should be so continued and maintained, does not show whether the contract was oral or in writing, the plaintiff may properly be required to state whether or not it was in writing, and if so, to set forth its substance.

Where the complaint alleges, generally, that at the time the contract was made the trustees were considering a sale of the church property and were in favor of removing or consolidating and would have consummated such removal or consolidation but for such agreement, the plaintiff may properly be required to state whether any formal action .had been taken in the premises by the board of trustees, and to specify in detail what was meant by the allegation that the removal or consolidation would have been consummated but for said agreement. Allegations in the complaint setting forth, briefly and in general terms, the deep interest of the intestate and her ancestors in the plaintiff church which led her to desire its continuance on the existing site and moved her to make the agreement in question, should not be stricken out as irrelevant, as, if the making of the agreement should be controverted, or its validity be contested, it would be competent to show such facts as béaring upon the probability of its having been made, and also upon the sufficiency of the consideration.

Appeal by the plaintiff, the First Presbyterian Church in New York City, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1902, requiring that the complaint be made more definite and certain and striking out matter as irrelevant and redundant, except that part of said order directing that a certain clause contained in the 5th paragraph of the complaint be stricken out.

Diclcinson IK Richards, for the appellant.

J. Archibald Murray, for the respondent.

This action is brought to enforce the specific performance of a contract made in 1894 by Rachel Lenox Kennedy, deceased, with the plaintiff by which, as an inducement to prevent the consolidation of the plaintiff with another church organization and the abandonment and sale of its church property on the westerly side of Fifth avenue, between Eleventh and Twelfth streets, contemplated owing to the loss of revenue incident to the removal to other parts of the city of many members of the congregation, she agreed that, if the plaintiff would not remove or consolidate, but would continue

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its separate existence and occupy and maintain the old church build■ing, she v^ould pay the plaintiff $4,000 per annum during her life, and secure the payment of a like sum out of her estate thereafter as long as the church should be so continued and maintained."

The complaint does not Show whether the agreement was oral or in writing, and the order requires the plaintiff to state whether or not it was in writing, and if so to set forth its substance. This ordinarily falls more particularly within the province of a bill of particulars ; but inasmuch as it may be desired to plead the Statute of Frauds, if the agreement be not in writing, this part of the order is eminently proper and must be sustained. It is alleged generally in the complaint that, at the time the decedent made the proposal which was subsequently accepted and became the contract, the trustees were considering a sale of the church property, were in favor of removing or consolidating as therein alleged, and would have consummated such removal or consolidation but for such agreement. The order.requires the plaintiff to state whether any formal action had been taken in the premises by the board of trustees, and to specify in detail what is meant by the allegation that the removal or consolidation would have been consummated but for said agreement. We think ■ there is- no impropriety in requiring the plaintiff to make its complaint more definite and certain in these particulars.

The complaint set forth briefly and in general terms the deep interest of decedent and her ancestors in this church which led her to desire its continuance on the existing site, and moved her to make the offer which became embodied in the contract in question. These allegations have been stricken out as irrelevant. This part of the order is erroneous. The allegations, could not possibly have prejudiced the defendant, and, therefore, he is not aggrieved thereby. (Tradesmen's Nat. Bank v. U. S. Trust Co., 49 App. Div. 362 , 366; Park & Sons Co. v. Nat. Druggists’ Assn., 30 id. 508 .) Then, again, this being a suit in equity, the pleader is allowed greater latitude in setting forth the facts constituting his cause of action than in an action at law. (Park & Sons Co. v. Nat. Druggists' Assn., supra; Bogardus v. Met. St. Ry. Co., 62 App. Div. 377 ; Town of Essex v. N. Y. & Canada R. R. Co., 8 Hun, 361 ; Younger v. Duffie, 26 id. 442,444 .)

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If the making of the agreement he controverted or its validity be contested it would be competent to show these facts as bearing on the probability as to whether it was made, and also on the sufficiency of the consideration. They are part of the history of the case and constituted the sole inducement for the contract, and are properly pleaded in equity.

The order should be modified by striking out that part of the order appealed from which strikes out allegations as irrelevant and redundant, and as so modified affirmed, without costs.

Yan Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.