Majority
p. 970Maria H. Lugar, Resp’t, v. Fannie J. Byrnes, App’lt. (Supreme Court, General Term, First Department, Filed May 18, 1888.)
Headnote
Practice-—Motion to strike out allegations of the complaint — When granted.A motion to strike out allegations of the complaint will only he granted in those cases in which harm or injustice will be done to the defendant by the retention of the allegations.
Appeal from order denying motion to strike out parts of complaint.
Babe & Keller, for app’lt; B. L. Harrison, for resp’t.
—Although it would not have been error for the court below to have granted the motion as to some of the allegations of the complaint which are complained against upon this appeal, yet as there is no evidence that the retention of these allegations will in any way embarrass the defendant in his defense, the ruling of the court striking them out should not be reversed upon appeal.
It is only in those cases in which harm or injustice will be done to the defendant by the retention of the allegations that such a motion should be granted.
The case at bar does not "present any such reason, and the order appealed from should be affirmed, with ten dollars costs and disbursements.