94 N.Y.S. 708 | N.Y. App. Div. | 1905
The plaintiff, alleges that between the years 1870 and 1880 she resided with one Michael Healy as a member of his household, and at- his request performed' for him certain offices of a domestic character and advanced moneys to¡ him for the maintenance and improvement of certain real property described in the complaint, upon the understanding and agreement that she should have an
Paragraph 6 of the complaint, which has been stricken out, alleges that the services rendered by the plaintiff to the decedent were- of a peculiar nature and of s.uch a character that they cannot be read-iHy measured and are not capable of exact ascertainment or value- in money,, but were of great value and benefit.'to the- decedent
It is to be. borne in mind that this is a suit in equity, and one of the class where clear and satisfactory evidence is required to warrant a decree for specific performance. It has often been held that in a suit in equity the pleader is not confined with the same degree of strictness to alleging the material facts only as in an action at law. (First Presbyterian Church v. Kennedy, 72 App, Div. 82.) In the main the allegations stricken out are allegations of inducement, and are permissible in a complaint in equity. The defendants are not aggrieved by the allegations, and, on the contrary, it would seem that by disclosing the plaintiff’s theory of the basis for the contract the defense would be benefited by being the better enabled so prepare to meet the plaintiff’s proof. The suit being in equity and it not appearing that the moving party was'prejudiced by these allegations they should not have been stricken out. (Bogardus v. Met. St. R. Co., 62 App. Div. 376; Rockwell v. Day, 84 id. 437; Uggla v. Brokaw, 77 id. 310.)
It follows, therefore, that the order, in so far as it is appealed from, should be.reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ.,. concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.