Summary
In First Presbyt. Church v. Kennedy (72 App. Div. 82) the action was to enforce specific performance of a contract by which the defendant's intestate, in order to induce the plaintiff to refrain from consolidating with another church, allegedly agreed to pay to the plaintiff an annual amount so long as the intestate lived, and thereafter the same amount out of her estate so long as the plaintiff church should be in existence.
Summary of this case from Hanson v. HansonOpinion
May Term, 1902.
Dickinson W. Richards, for the appellant.
J. Archibald Murray, for the respondent.
This action is brought to enforce the specific performance of a contract made in 1894 by Rachel Lenox Kennedy, deceased, with the plaintiff by which, as an inducement to prevent the consolidation of the plaintiff with another church organization and the abandonment and sale of its church property on the westerly side of Fifth avenue, between Eleventh and Twelfth streets, contemplated owing to the loss of revenue incident to the removal to other parts of the city of many members of the congregation, she agreed that, if the plaintiff would not remove or consolidate, but would continue its separate existence and occupy and maintain the old church building, she would pay the plaintiff $4,000 per annum during her life, and secure the payment of a like sum out of her estate thereafter as long as the church should be so continued and maintained.
The complaint does not show whether the agreement was oral or in writing, and the order requires the plaintiff to state whether or not it was in writing, and if so to set forth its substance. This ordinarily falls more particularly within the province of a bill of particulars; but inasmuch as it may be desired to plead the Statute of Frauds if the agreement be not in writing, this part of the order is eminently proper and must be sustained. It is alleged generally in the complaint that, at the time the decedent made the proposal which was subsequently accepted and became the contract, the trustees were considering a sale of the church property, were in favor of removing or consolidating as therein alleged, and would have consummated such removal or consolidation but for such agreement. The order requires the plaintiff to state whether any formal action had been taken in the premises by the board of trustees, and to specify in detail what is meant by the allegation that the removal or consolidation would have been consummated but for said agreement. We think there is no impropriety in requiring the plaintiff to make its complaint more definite and certain in these particulars.
The complaint set forth briefly and in general terms the deep interest of decedent and her ancestors in this church which led her to desire its continuance on the existing site, and moved her to make the offer which became embodied in the contract in question. These allegations have been stricken out as irrelevant. This part of the order is erroneous. The allegations could not possibly have prejudiced the defendant, and, therefore, he is not aggrieved thereby. ( Tradesmen's Nat. Bank v. U.S. Trust Co., 49 App. Div. 362, 366; Park Sons Co. v. Nat. Druggists' Assn., 30 id. 508.) Then, again, this being a suit in equity, the pleader is allowed greater latitude in setting forth the facts constituting his cause of action than in an action at law. ( Park Sons Co. v. Nat. Druggists' Assn., supra; Bogardus v. Met. St. Ry. Co., 62 App. Div. 377; Town of Essex v. N.Y. Canada R.R. Co., 8 Hun, 361; Younger v. Duffie, 26 id. 442, 444.)
If the making of the agreement be controverted or its validity be contested it would be competent to show these facts as bearing on the probability as to whether it was made, and also on the sufficiency of the consideration. They are part of the history of the case and constituted the sole inducement for the contract, and are properly pleaded in equity.
The order should be modified by striking out that part of the order appealed from which strikes out allegations as irrelevant and redundant, and as so modified affirmed, without costs.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.