Palmer v. Day

This is an action to set aside and declare invalid certain portions of a last will and testament, and this motion is made under section 545 of the Code of Civil Procedure to strike out several paragraphs of the complaint on the ground that they are irrelevant. There is little benefit in motions of this kind, and there may be much harm. Town of Essex v. New York & C. R. R. Co., 8 Hun, 361 . No part of a pleading will be stricken out as irrelevant unless the court can see that the moving party is aggrieved by it and that striking it out will not harm the pleader. Steiffel v. Tolhurst, 32 Misc. Rep. 469 , 66 N. Y Supp. 538 , affirmed 55 App. Div. 532 , 67 N. Y. Supp. 274 . In Park v. Nat. Druggist Ass’n, 30 App. Div. 508 , 52 N. Y. Supp. 475 , the court said:

“The nature of the relief itself frequently requires not only that the ultimate facts from which the right to relief arises should be stated, but that facts which are somewhat collateral should be laid before the court, so that the precise relief required to give the party what he is entitled to and the way in which that relief shall be granted may be understood. For that reason in actions of that nature greater latitude and liberality are allowed in the preparation of pleading than in other actions, and the power to strike out matter which is claimed to be irrelevant should be used with reluctance and caution.”

As this is an action in equity, I -think the language quoted applies, and that the motion to strike out should be denied, with $10 costs.

Motion denied, with $10 costs.