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Young v. White

143 N.Y.S. 936 Court N.Y. App. Div. Decision date 1913-11-07 English

Delivered by McLAUGHLIN, J.

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p. 936
YOUNG v. WHITE.
(Supreme Court, Appellate Division, First Department.
November 7, 1913.)

Headnote

Pleading (§ 364*)—Striking Pleadings.
The rule as to striking out immaterial matter in the complaint is somewhat different in an equitable action than it is an action at law.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec." Dig. § 364.[1] ]
Appeal from Special Term, New York County.
Action by John Alvin Young against Archibald S. White. From an-order denying a motion to strike certain allegations of the complaint and to make other allegations more definite, defendant appeals. Order modified.
See, also, 143 N. Y. Supp.' 937 .
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Nathaniel A. Elsberg, of New York City, for appellant.
John C. Tomlinson, of New York City, for respondent.

This action is in equity to compel the defendant to account for certain profits alleged to have been made by- him’ and the plaintiff under a joint venture. The facts upon which a recovery is sought are substantially the samé as those set forth in the-opinion on the appeal from an order denying a motion to strike out certain allegations of the complaint in the action between the same-parties', designated as action No. 1 ( 143 N. Y. Supp. 931 ). A similar motion was made in this action as in the other one, viz., to strike out certain allegations of the complaint as irrelevant and redundant, and* to make other allegations more definite and certain. The complaint is-somewhat longer than the one in action No. 1, and covers approximately 35 printed pages, but the essential facts are practically the same.

Notwithstanding the fact that the rule as to striking out is somewhat different in an action in equity than it is at law, nevertheless I am of the opinion that the defendant’s motion to strike out as irrelevant and redundant all the paragraphs numbered first, fifth, sixth,, seventh, eighth, ninth, tenth, thirteenth, fourteenth, fifteenth, and seventeenth should have been granted, and also so much of paragraphs, numbered second, third, fourth, eleventh, nineteenth, twenty-sixth,, thirtieth, thirty-first, and thirty-third, designated in the notice .of motion under numerals I and II, respectively.

The defendant also asks in his notice of motion that the complaint be made more definite and certain as to other paragraphs or allegations,, but in this respect I think the motion-was properly denied. The information here sought to be obtained might properly be considered on a motion for a bill of particulars, but it would serve no useful purpose in the complaint and ought not to be incorporated "therein.

My opinion, therefore, is that the order appealed from should be modified as indicated in this respect, with $10 costs and disbursements,.

p. 937
to the appellant. The matters stricken out leave the complaint in such condition that the plaintiff should be permitted to serve an amended complaint, in conformity with this opinion, without costs, and the defendant should have the usual time to serve an answer thereto. All concur.