Aрpeal is taken from an order of the Supreme Court at Special Term which granted defendant’s motions (1) to dismiss as insufficient thе two causes of action alleged in the complaint (CPLR 3211, subd. [a], par. 7) and (2) to strike out the allegations contained in cеrtain designated paragraphs of the complaint as scandalous and prejudicial matter unnecessarily inserted thеrein (CPLR 3024, subd. [b]). Although the dismissal rendered academic the motion to strike, the order, in terms, granted both motions, with leave to replead.
The first cause of action is brought to recover damages for personal injuries sustained by plaintiff as the result of defendant’s negligent operation of a motor vehicle. The second cause of action seeks to set aside a release by plaintiff of her claims against the defendant and is predicated on allegations of both fraud and mistake.
The pаragraphs stricken from the first cause of action as scandalous and prejudicial alleged, in substance, that (par. 9) fоllowing the automobile accident thereinbefore alleged plaintiff commenced an action against defendаnt in the City Court of Albany to recover property damage to her automobile, her complaint therein alleging defendаnt’s negligence as solely causative thereof and averring plaintiff’s freedom from negligence ; that (par. 10) judgment in favor оf plaintiff and against defendant upon said cause of action was entered in said court;
The judgment and other papers in the prior action are not before us, but the parties agree, and Special Term noted, that the judgment was entered by consent in accordance with CPLR 3221, pursuant to defendant’s offer to allow judgment to be taken against him,' followed by plaintiff’s acceptance of that offer. Special Term held that “ [a]s to the judgment entered against the defendant in the City Court, CPLR 3221 specifically states that it shall not be made known to the jury, and, therefore, may not be alleged in the complaint.” CPLR 3221 does not, however, prоvide that the 66 judgment ” shall not be made known to the jury but that “ [a]n offer of judgment shall not be made known to the jury.” Second, we take it that the words “ the jury” (emphasis supplied) refer not to 11 a” jury or to “ any ” jury but solely to the jury which shall hear the trial of an action within the rule, i.e., an action in which an e e offer of judgment” has been made and refused; inasmuch as there would, of course, be no occasion for a jury to hear a case in which an offer of judgment has been made and accepted and a judgment entered. Thus the inhibition does not apply to a subsequent or other action such as this. Finally, the complaint before us does not plead an offer of, or consent to judgment; and if we were to assume the unlikely event of somе future reference to the basis of the judgment that might under some circumstance or another be prejudicial, the trial court would doubtless restrict the proof to the fact of the judgment and the identity of the issues thereby adjudicated.
CPLR 3221 is headed u Offer to compromise ”, although the word " compromise ” does not appear in the rule proper and is not otherwise employed. On the basis of this language and as an additional ground of its decision, Special Term had recourse to the principle that an offer of compromise is not admissible as evidence of liability, citing Quillen v. Board of Educ. (
Having determined the validity and propriety of plaintiff’s utilization of the prior adjudication to establish her right to recover, we turn to whatever technical questions of pleading are raised by the motion to strike. We find no impropriety in plaintiff’s pleading the prior judgment, whether or not it was necessary to allege it. Under defendant’s motion, the averments could be stricken as “ unnecessarily inserted ” only if they are “ scandalous or prejudicial ”as well. (CPLR 3024, subd. [b].) In point is Knibbs v. Wagner (14 A D 2d 987) in which the pleading оf defendant’s conviction, upon his plea of guilty, of driving while intoxicated was held not irrelevant or prejudicial (under rule 103 of the former Rules of Civil Practice) inasmuch as evidence of the conviction would be admissible upon the trial. Under CPLR 3013, the rules of pleading are broad and, under CPLR 3026, pleadings must be ‘ ‘ liberally construed ’ ’ and defects must be ignored “ if a substantial right * * * is
not prejudiced.” The сommentators find that CPLR 3013 is “not a reformulation of former practice. The requirement of section 241 of the Civil Practice Act that a pleading state ‘ material facts ’ as well as the prohibition of section 241 against pleading ‘ evidence ’ have been abandoned.” (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3013.01; and see Foley v. D’Agostino, 21A D 2d 60, 63.)
Although, as Special Term correctly held, plaintiff sought improperly to incorporate in her complaint, by reference, the pleadings in the prior action (CPLR 3014; First Preliminary Repоrt of N. Y. Adv. Comm, on Practice and Procedure, 1957, p. 62; 3 Weinstein-Korn-Miller, op. cit. supra, par. 3014.05; Mack v. Wyer, 120 N. Y. S. 2d 99), her error does not render deficient her negligence сause of action, as such, but she should be permitted to replead, if she be so advised, upon a proper application.
The second cause of action seems to us sufficient (see Duch v. Giacquinto, 15 A D 2d 20) and, indeed, respondent’s brief advances no argument to the contrary.
Herlihy, Aulisi, Staley, Jr., and G-abbielli, JJ., concur.
Order reversed, on the law, and motions denied, with costs to appellant.