Opinion
March 24, 1947.
In an action to set aside a separation agreement, alleged to have been improvidently made, as providing inadequate support for appellant and her daughter at the time when it was made, and under present circumstances, respondent moved to dismiss appellant's amended complaint for insufficiency or, in the alternative, to strike out as irrelevant, redundant and scandalous, the matters alleged in certain numbered paragraphs of the complaint. Order dismissing amended complaint for insufficiency, granting leave to plead over, and directing that if appellant pleads over, the facts alleged in certain numbered paragraphs of appellant's amended complaint be omitted, reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to respondent to answer within ten days from the entry of the order hereon. The amended complaint is sufficient. ( Hungerford v. Hungerford, 161 N.Y. 550; Tirrell v. Tirrell, 232 N.Y. 224; Dolan v. Dolan, 270 App. Div. 788, decision amended 271 App. Div. 851, affd. 296 N.Y. 860.) Motions to strike out parts of a pleading, on the grounds urged, are not favored. ( Solomon v. La Guardia, 267 App. Div. 435.) The matters which the order appealed from directs be omitted, if appellant shall plead over, are not scandalous, nor do they appear to be redundant or irrelevant. Hagarty, Acting P.J., Johnston, Adel and Nolan, JJ.; Carswell, J., concurs in result.