Howard v. Tiffany — 3 N.Y. Super. Ct. 695

Majority

p. 695

Howard v. Tiffany and others.

Headnote

"The facts constituting the cause of action,” which the complaint is to contain,, (Code, § 142,) Eire not merely the facts upon which the plaintiff’s right to relief ⅛ founded, but all such facts as are necessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action.

In actions strictly legal, (using the old nomenclature,) the facts constituting the cause of action rnay he stated substantially as they were formerly in the declaration.

But where the suit is for equitable relief, such as an injunction or the like, and where the costs of the suit are in the discretion of the court, it is often necessary to state in the complaint facts which will bear upon the granting of costs, or of particular relief, as they were formerly stated in a bill in chancery.

Jan. 25;

Jan. 27, 1851.

This was an action praying for a preliminary and a perpetual injunction, in respect to the use of demised premises, contrary to the covenants and conditions of a lease. The defendants moved to strike out certain portions of the complaint, as redundant and irrelevant. It is deemed unnecessary to set forth the matter at large. The points are stated in the decision.

A. Mathews, for the defendants.

J. E. Bur rill, Jr., for the plaintiff.

(with the concurrence of the chief justice and Paine, J.,) said, the rule applicable to actions for the recovery of money, real property, or the possession of personal property, which were formerly strictly legal, and in which it is sufficient to state the facts constituting the cause of action, substantially, as they were formerly stated in a declaration, could not be always applied to actions where specific relief .of a different kind is demanded. Tims, where the object is to obtain an injunction, together with other relief, it will often be indispensable to set forth in the complaint, facts which need not be stated in respect of the other relief, and as much at large as was formerly done in a well-drawn bill in chancery. This necessity will be the greater, if the plaintiff seek a perpetual injunction.

p. 696

Again, costs in all cases of this class, are in the discretion of the court, (Code, § 304 to 306;) and unless the facts hearing upon the decision of that question, are stated in the complaint, so as to be answered and admitted, or put in issue, evidence to prove them will not be admissible at the trial. “ The fads constituting the cause of action,” spoken of in the code, (§ 142.) are therefore not merely the tacts upon which the plaintiff’s right to ask relief ib founded, but those words include all such facts as are necessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action. The evidence in support of such facts, is of course an entirely distinct thing.

Applying this construction of the code to the complaint in this case, the principal portion of the matter excepted to, must be allowed to stand. The residue, as designated on the copy furnished, will be stricken out. There is no good reason why the irrelevant part of an entire statement complained of as being redundant, should not be stricken out, although, as to the residue, the motion fail. Order accordingly.