Barney & Smith Car Co. v. Syracuse Rapid-Transit Railway Co.

This is an action to recover damages claimed to have been sustained through the alleged fraudulent acts and conspiracy of the defendants, whereby they obtained from the plaintiff, without paying therefor, a large amount of street cars. The purposes which, defendants sought to accomplish by obtaining these cars, and the reasons why they formed the plan of so doing, as claimed, are set forth quite fully in paragraph 11 of the complaint. I think it would be proper for plaintiff to prove the facts set forth in the paragraphs attacked by this motion as bearing upon the probability of, and furnishing a reason and basis for, the purposes alleged at said paragraph 11 to have been formed by the defendants. At least, I do not regard it so plainly established that the allegations in question set forth facts which will be immaterial in an action of this character, where the proofs are apt to take a wide range, that they should be stricken out upon this preliminary motion. The motion is therefore denied, with -$10 costs to plaintiff, to abide the event.

Motion denied, with $10 costs to plaintiff, to abide event.