Opinion
June 19, 1962
Order entered on January 23, 1962, denying motion to strike certain paragraphs of the complaint, unanimously modified by striking from the complaint paragraphs numbered Sixth through Tenth, inclusive; Fifteenth; Seventeenth; Twentieth to Thirty-seventh, inclusive; and Thirty-ninth; and as so modified, affirmed, with costs to appellant. In essence, the complaint pleads certain agreements by which plaintiffs previously delivered certain corporate stock and notes to defendants, upon a representation that the securities would be either returned or the notes paid to the extent of $32,500. This agreement was superseded by an agreement that if plaintiffs would continue in the employ of the said corporation until July, 1960 at the salaries they were then receiving, they would be paid $40,000 for the securities theretofore delivered. Suit is for the breach of this agreement and the damages are $40,000. Some of the stricken paragraphs recite agreements with other people similar to the original agreement with plaintiffs. The others recite facts appropriate to an action for fraud in inducing this agreement and for waste of the assets of the corporation concerned. The presence of these allegations could only tend to unnecessary extension of the trial and to confuse the issues. While it is true that motions of this character are not favored ( Manco Distrs. v. Bigelow-Sanford Carpet Co., 11 A.D.2d 1088, and see collation of authorities in Hafnia Ham Co. v. Cheese Importing Co., 13 Misc.2d 733), where the effect would be to raise collateral issues, the application should be entertained ( Murphy v. National City Bank, 203 App. Div. 571).
Concur — Botein, P.J., Stevens, Eager, Steuer and Bergan, JJ. [ 33 Misc.2d 78.]