Opinion
March, 1932.
Present — Sears, P.J., Crouch, Taylor, Edgcomb and Thompson, JJ.
Order reversed on the law in so far as it denies relief as to striking out redundant and irrelevant matter in the complaint, and otherwise affirmed, and motion granted to the effect that plaintiff be directed to serve an amended complaint as indicated in the opinion, and other proceedings on the part of the plaintiff stayed until the service of such complaint, without costs of this appeal to either party. We find that but one cause of action is pleaded.
In drawing the complaint counsel evidently proceeded, at least in part, upon the theory that these defendants, plaintiff's indemnitors, were bound by the findings of fact in the prior action against Doyle, since defendants had been vouched in and shared the burden of the prior trial with the plaintiff; and — there having been a recovery against the indemnitee — it must also be the pleader's theory that that judgment, so far as it reaches, will be res adjudicata here. If these conceptions have merit, this complaint in that aspect should set up only such ultimate facts as could be proved by access to the judgment roll and the minutes of the former trial. Statements of the testimony of the witnesses on that trial ( e.g., pars. 31 to 37, inclusive) are evidentiary and should not be in the complaint. Going beyond the confines of the former action and viewing broadly the cause of action in the mind of the pleader in the instant case, plaintiff should be allowed all reasonable latitude in alleging facts to show loss to it through dishonest or criminal acts of its employees. But we find instances of allegations of legal conclusions, of extraneous occurrences and of purely evidentiary matters so numerous that instead of attempting to specify them in detail, we deem it best to direct the service of an amended complaint. (See Covey v. England McCaffrey, 233 App. Div. 332; Isaacs v. Washougal Clothing Co., Inc., Id. 568.) All concur.