Hoffman v. Wight — 51 N.Y. St. Rep. 199

Majority

p. 199

Cornelius S. Hoffman, App’lt, v. Charles H. Wight, Impl’d, Resp't.^[1]

(Court of Appeals,

Filed March 21, 1893.)

Headnote

1. Pleading — Striking out irrelevant matter — Code, § 545.

Plaintiff commenced an action against defendant Wight, alleging the recovery of two judgments against Wight and Newell, as copartners, in New Jersey, upon service upon Newell only, and by an amended complaint aliened the original indebtedness and the recovery of judgments thereon. Wight demurred, on the ground that the judgments had been procured without service upon him, but judgment for plaintiff being ordered on the demurrer, on the ground that the allegations as to the judgments were surplusage,a motion by Wight to strike them from the complaint as surplusage was granted. Held, error, as not the proper form in which to raise the question.

3. Same.

The question as to whether the complaint contains a cause of action, taking in all the allegations, ought to be raised either by a demurrer, or else upon a trial of the cause, when evidence is offered, or at the close of the case, by a motion for a nonsuit, or in some other proper way.

Appeal from judgment of the New York superior court, general term, affirming order striking out certain allegations of the complaint.

The complaint, served upon defendant Wight, alleged two judgments of record against the defendants Wight and Newell, as co-partners, in the circuit court of Union county, New Jersey, upon service of the summons upon the defendant Newell only. To this Wight demurred, and plaintiff served an amended complaint, alleging the original indebtedness of the defendants to the plaintiff, and the recovery of the judgments thereon, and demanded judgment for the aggregate of the two judgments, which included claims and the costs of the suit. To this Wight again demurred, on the ground that the action was not on the original demands, but upon the judgments, which, having been procured without service of process upon him, was void as to him, and so did not constitute a cause of action against him. Mr. Justice McAdam directed judgment in favor of plaintiff on the ground that the action was on the original demands, the allegations as to the judgments being surplusage. Wight, upon leave given, withdrew his demurrer and made a motion, among other things, to strike from the complaint as surplusage all reference to the judgments, which was granted, and on appeal to the general term the order was affirmed.

Alex. Thain, for app’lt; Ira B. Stewart, for resp’t.

This order, as it now stands, strikes out entirely from the complaint certain allegations which, if the action be re

p. 200

garded as upon the judgments obtained in New Jersey, are, in any event, material, so far as the defendant is concerned who is impleaded with the defendant Wight.

Whether the allegations are relevant and material as against Wight depends upon what force is to be given to the judgments obtained in New Jersey as against him.

It may be that the defendant is right in his contention that the judgments are of no validity for any purpose whatever as against him.

The result of the order here made is to strike out what is, at all events, a material allegation against the other defendant, and to leave the plaintiff with no cause of action whatever against such defendant, assuming that his cause of action, as alleged, was one upon the judgments. We think the case is not within the proper scope of the section of the Code § 545, which allows irrelevant and redundant matter to be stricken out.

The question whether the complaint contains a cause of action, taking in all the allegations, ought to be raised either by a demurrer, or else upon a trial of the case, when evidence is offered, or at the close of the case, by a motion for a nonsuit, or in some other proper way.

Without further discussing the question, and without deciding the point as to the effect of the New Jersey judgments against defendant Wight, we are clear this is not the proper form to raise the question.

The orders should be reversed, with costs to appellant in all courts, and the motion to strike out should be denied, with ten dollars costs.

All concur.