120 N.Y.S. 543 | N.Y. App. Div. | 1909
Appeal from an order denying defendants’ motion t.o strike out certain parts of the complaint as irrelevant and redundant. The general principles which should (but Seldom do) determine the form of a complaint are well understood. The fundamental rule is that prescribed by section 481 of the Code of Civil Procedure, that a complaint must contain “ a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” Section 545' provides that “ Irrelevant, redundant or scandalous matter contained in a pleading may be stricken out upon the motion of a person aggrieved thereby.” Irrelevant allegations are those which have no substantial relation to the controversy between the parties and which cannot affect the result, and the test of any allegation is to inquire whether it tends to constitute a cause of action or a defense. (Park & Sons Co. v. Nat. Druggists’ Assn., 30 App. Div. 508; Dunton v. Hagerman, 18 id. 1461) Statements of the legal conclusions of the pleader are redundant and should be stricken out, as should also statements of mere matters of evidence. Somewhat more latitude is, of necessity, given in equity suits than in actions at law, but even in equity the rules of pleading should be measura
The necessity of answering irrelevant and redundant matter brings a defendant, when moving to strike out the same, within the meaning of section 545 of the Code of Civil Procedure as “ a person aggrieved thereby.” (Hamilton v. Hamilton, supra.) Turning now to the complaint in the present case, we find that it attempts to set forth a cause of action by- two stockholders of the Metrópoli-' tan Underwriting Company and the Columbia Life Assurance Society, suing in behalf of themselves and other stockholders similarly situated. The purpose óf the action is to recover from the individual defendants, directors of one or other of the above-named corporations* damages for certain alleged illegal acts whereby the assets of said corporations have been lost or wasted. What such a complaint should contain lias, been distinctly set forth by the Court' of Appeals. It should allege: First. The cause of action in favor of the. corporation, which should be stated in exactly the same manner and with the same detail of facts as would be proper in case the corporation itself had brought the action. Second. The facts which entitle the plaintiff to maintain the action in place of the corporation, that he is a stockholder 'therein, and that the corporation itself has either refused or unreasonably failed to bring the action.' Ordinarily, no other allegations are necessary or material. (Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121.) The 3d and 4th paragraphs of the complaint allege that the Columbia Life Assurance Society was incorporated by the Metropolitan Underwriting Company, and that said assurance society was caused to be incorporated by said underwriting company and owned- and controlled by it. These allegations, strictly speaking, cannot be true, for one corporation cannot incorporate another, and, if true in. any sense, are irrelevant. They should, therefore, be stricken out. The allegations in the 21st and 22d paragraphs, of the respective .sums which plaintiffs paid for their stock, and the allegations in the
The order appealed from must be reversed, and the motion to strike out granted to the extent indicated above, without costs to either party, with leave to plaintiff to serve an amended complaint within twenty days.
Ingraham, McLaughlin and Lahghlin, JJ., concurred; Clarke, .J., dissented.
Order reversed, without costs, and motion granted to extent stated in opinion. Settle order on notice.