Williams v. Folsom — 32 N.Y. St. Rep. 455

Majority

p. 455

Louisa Williams et al., Resp’ts, v. Samuel D. Folsom et al., App’lts.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Pleading — Irrelevant allegations.

Where it reasonably appears that the allegations constitute a full exposition of plaintiff’s case, giving perhaps more details than is necessary, but germain to the subject, and they may be items of importance in establishing the cause of action, they cannot properly be stricken out as irrelevant, especially if the action be one in which fraud is alleged.

3. Same.

The disposition of a motion to strike out on that ground is discretionary and should be granted only where no doubt exists of the irrelevancy charged and where there is evidence that their retention would embarrass the opposite party in his prosecution or defense.

3. Same — Waives.

Service of an answer is a waiver of the motion to strike out for irrelevancy, whether the complaint be amended or not.

4. Same — Indefiniteness.

A general statement, if comprehensive and complete, although it may in the proof involve details, cannot be arraigned as indefinite or uncertain.

Appeal from an order of special term, denying motion on part of defendants for order striking out certain portions of amended complaint.

Davenport, Smith & Perkins, for app’lts; Carter, Hughes & Oravath, for resp'ts.

This action was brought to recover the sum of $10,000 to which the plaintiffs considered themselves entitled by reason of the treacherous conduct of the defendants, who, as their agents, had induced them to sell certain real estate for a sum less than its value -in order to resell the same at an advanced price for their own benefit, and which they accomplished by improper representation and the use of a vende„e who was connected with the fraudulent scheme. The allegations in the complaint, designed to make this apparent, are in part objected to and the defendants seek to have them stricken out in the first place or made in some respects more definite and certain.

The allegations as a whole are not, nor is any part of them, -irrelevant They constitute a full exposition of the plaintiffs’ case, giving, perhaps, more details than would be necessary, but nevertheless germain to the subject, and may be items of importance in establishing the cause of action set up. When this reasonably appears they cannot be properly stricken out as irrelevant, more especially if the action be one in which fraud is alleged. Aside from this, the disposition of a motion made for such a purpose is discretionary, and should be granted only where no doubt exists of the irrelevancy charged. This is the rule, although the pertenency of some of the allegations is not directly apparent, but there is a possibility that they may become so in explanation of or as connected with the history of the subject matter of the litigation. There is still another rule applicable to such a motion, and that is, there must be some evidence that the retention of the

p. 456

allegations would embarrass the defendants in their defense; something shown establishing harm or injustice. Lugar v. Byrnes, 15 Civil Pro., 72 ; 15 N. Y. State Rep., 970. There is still another objection to the success of this motion, namely, that the defendants have answered. An answer can have no other effect in reference to such a motion than to waive the right to make it. This must apply whether the complaint be amended or not, if the answer remain. The issues arq framed when that pleading is put in and the preliminaries are closed.

The allegations are not subject to the charge of indefiniteness. They are definite and certain. There can be no misunderstanding as to what is meant by them, and the evidence to sustain them cannot be called for. It may be said indeed that the defendants well know what is charged against them, and are desirous of ascertaining if they can the particulars of the proof by which they will be established. Besides allegations of fraud are not required to be stated with great particularity. The array of facts and circumstances, but not minutely, is sufficient Passavant v. Cantor, 21 Abb. N. C., 259 , 264; 16 N. Y. State Rep., 252. The court may in some instances grant, on a proper motion therefor, a detailed statement, but not on such a motion as was made herein in such a case as this. A general statement, if comprehensive and complete, although it may in the proof involve details, cannot be arraigned as indefinite or uncertain.

For these reasons the learned judge in the court below properly denied the motion, and it should be affirmed, with ten dollars costs and disbursements of this appeal.

Yan Brunt, P. J., and Daniels, J., concur.