Stokes v. Star Co. — 74 N.Y.S. 528

Majority

p. 528

(69 App. Div. 21.)

STOKES v. STAR CO.

(Supreme Court, Appellate Division, First Department.

February 7, 1902.)

Headnote

Answer—Striking Allegations—Appeal.

A motion to strike out allegations from a pleading is to be granted only where it is evident that such allegations, if allowed to remain, will work some injustice to the moving party.

Appeal from special term, New York county.

Action by William E. D. Stokes against the Star Company. From .an order striking out certain allegations of an answer as irrelevant, scandalous, and redundant, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. L, and HATCH, O’BRIEN, and INGRAHAM, JJ.

C. J. Shearn, for appellant.

J. M. Stearns, for respondent.

We are of the opinion that motions of this kind should be granted only in cases where it is evident that the allegations questioned, if allowed to remain as a part of the record, will work an injustice to the moving party. It is often difficult to determine upon pleadings themselves whether or not allegations contained therein will be irrelevant and redundant when the facts are developed upon the trial, as the course of the evidence frequently makes that which at first blush might seem irrelevant to be pertinent to the peculiar phase which the case assumes. In the case at bar it may be that certain of the allegations stricken out will be irrelevant. There are others which are clearly pertinent, and it should be left to the trial to determine as to whether evidence should be allowed in support of these allegations or not. There are none of them which can in any way injure the plaintiff, or put him to any disadvantage in the trial of the case. We think, therefore, that the motion should have been denied..

The order appealed from should be reversed, with $io costs and •disbursements, and the motion denied, with $io costs to abide event. All concur.