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Chittenden v. San Domingo Improvement Co.

110 N.Y.S. 148 Court N.Y. App. Div. Decision date 1908-05-08 English

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p. 148
CHITTENDEN v. SAN DOMINGO IMP. CO.
(Supreme Court, Appellate Division, First Department.
May 8, 1908.)

Headnote

Pleading—Unnecessary Matters oe Evidence—Striking on Motion.
Where a pleading requiring an answer or a reply contains allegations of' mere evidence not necessary to a statement of the cause of action or counterclaim or affirmative defense, the adverse party has the right to-have such allegations stricken, out on motion.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1156— 1162.]
Appeal from Special Term, New York County.
Action by Caroline Sayles Chittenden, as executrix of the will of Frederick W. Holls, against the San Domingo Improvement Company of New York. From an order denying a motion to strike a portion of the complaint, defendant appeals. Reversed, and motion granted.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Frederick B. Woodruff, for appellant.
Frederic W. Hinrichs, for respondent.

The portions of the complaint which the defendant moved to strike out as redundant and irrelevant are mere recitals-of evidentiary facts, and are not necessary allegations of the cause of action set forth. The defendant may and probably does desire to deny the allegations of employment of plaintiff’s testator and the rendition-of services by him. It is aggrieved because it may not be able to deny the evidentiary facts unnecessarily set forth in the complaint.

Where a pleading requiring an answer or a reply contains allegations, of meré-evidence not necessary to a statement of the cause of action or counterclaim or affirmative defense, the opposite party has the right to have such unnecessary allegations stricken out. Hamilton v. Hamilton, 124 App. Div. 619 , 109 N. Y. Supp. 221 ; Tradesmen’s National Bank v. U. S. Trust Co., 49 App. Div. 362 , 63 N. Y. Supp. 526 .

The motion should have been granted. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10' costs.