Opinion
December 30, 1909.
William H. Hollister, Jr., and George H. Taylor, Jr., for the appellant.
G.B. Wellington, for the respondent.
The matter sought to be stricken from the complaint is claimed to be justifiable as constituting a motive for the alleged fraudulent conspiracy. Whether or not it would be admissible as evidence on the trial, it clearly has no place in the pleading. A complaint should contain a plain and concise statement of the facts constituting the cause of action and not the evidence of those facts. This complaint was complete before the allegations which are the subject of criticism. The insertion of these evidentiary facts in the complaint does not affect the question of their admissibility as evidence at the trial. If admissible as evidence, they do not lose that quality because of an omission to plead them, and good pleading requires that they should not be thus stated.
It is quite true that the mere presence of irrelevant or redundant matter in a pleading does not justify a motion to strike such matter from the pleading under section 545 of the Code of Civil Procedure. It must also appear that the moving party is "aggrieved thereby." The tendency of recent decisions, however, is to the effect that a party is aggrieved within the meaning of said section 545 when such irrelevant or redundant matter appears in a pleading which requires an answer or reply. ( Chittenden v. San Domingo Improvement Co., 125 App. Div. 855; Hamilton v. Hamilton, 124 id. 619; Schroeder v. Post, 3 id. 411; Schroeder v. Young, 49 id. 640.) As stated in the case last cited when a plaintiff pleads his evidence the defendant is "a person aggrieved" by such statements of evidence when he is required to admit, deny or ignore them in an action at law. It may be that he cannot deny them and a plaintiff is not at liberty to thus embarrass his adversary or to place him in the dilemma of determining for himself at his peril whether he should deny allegations which are clearly immaterial as matter of pleading or whether he may safely ignore them, and when such is the case the defendant is aggrieved and may require such immaterial allegations to be stricken from the complaint.
The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.