Opinion
March, 1927.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Merrell, Martin, O'Malley and Proskauer, JJ. Order modified as directed in opinion and as so modified affirmed, without costs, with leave to plaintiff to serve an amended complaint within ten days from service of order upon payment of ten dollars costs of motion at Special Term.
The Special Term correctly ordered a new complaint to be served because the complaint under scrutiny violates the provisions of section 241 of the Civil Practice Act. It specifically ordered, however, that certain paragraphs of the complaint be stricken out as irrelevant. There are many allegations of fact in these paragraphs which, properly and concisely stated, may be material to what the plaintiff may ultimately determine to be his cause of action. For that reason the order appealed from should be modified by striking therefrom the paragraph beginning with the words, "Ordered that paragraphs of the complaint marked," and ending with the words, "as irrelevant and unnecessary; and it is further ordered," and as so modified should be affirmed, without costs, with leave to plaintiff to serve an amended complaint within ten days from service of the order to be entered hereon, upon payment of ten dollars costs of motion at Special Term.