120 N.Y.S. 181 | N.Y. App. Div. | 1909
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 plead
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.