Majority
p. 916Joe H. E. Ward, Appellant, v. J. William Smallwood et ah, Copartners Doing Business under the Name of Carl H. Peorzheimer & Co., Respondents. ents.—
Order, entered on September 12, 1960, granting defendants’ motion, pursuant to rule 103 of the Rules of Civil Practice, to strike from the complaint paragraph 15 and the last sentence of paragraph 17, unanimously affirmed, on
p. 917
the law and on the facts, with $20 costs and disbursements to the respondents. The matter stricken was evidentiary, or eonelusory and argumentative in some instances; and, in any event, it was unnecessary to a proper statement of plaintiff’s alleged cause of action. Thus, the exercise of discretion by Special Term to strike the same should not be disturbed. The plaintiff is not prejudiced thereby in that, nevertheless, such evidentiary matter as is contained in the stricken allegations may be received in evidence upon the trial if material and relevant to plaintiff’s alleged cause of action. (Gluck v. Pickel, 286 App. Div. 1071 ; Security Nat. Bank of L. I. v. Heaney, 20 Misc 2d 653 .) Concur — Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.
Cases cited
- Security National Bank of Long Island v. Heaney 20 Misc 2d 653 p. 917