Mussina v. Clark

17 Abb. Pr. 188 | N.Y. Sup. Ct. | 1863

Ingraham, J.

In an action for a conspiracy, it is very difficult to limit the extent to which the plaintiff may go in his complaint, in setting out the fraudulent acts complained of. The rule has been to allow a great latitude in setting out in the complaint the particular acts relied upon, from which the conspiracy is to be inferred, even so far as to allow the individual acts of the conspirators to be averred. This rule was distinctly stated by Oakley, J., in Tappan a. Powers (2 Hall, 277). He says: “ It cannot be doubted that if the declaration had averred that all the defendants used -the fraudulent means of obtaining plaintiff’s property which were charged against one, that such an averment would be supported by proof that they were used in pursuance of a plan concerted among them all; and it seems to me equally clear .... the acts of each defendant may be stated to be done individually, and that such act is, in judgment of law, the act of all.”

Many of the allegations, therefore, of the individual acts of the defendants, cannot be said to be irrelevant.

So far as they are scandalous they should be stricken out, unless it appears that they relate to the foundation of the plaintiff’s action ; but if they are acts from which the conspiracy may be proved, the plaintiff has a right to insert them in the complaint.

Judge-Harris, in Williams a. Hayes (5 How. Pr., 470), states the rule, as to striking out such matters, to be, 11 whether the allegation in question can be made the subject of a material issue.” (See, also, 5 How. Pr., 57, 219.)

Some of the allegations are moved to be stricken out, because they are scandalous, impertinent, irrelevant, or redundant. It cannot be of any use to discuss these different questions separately, but the application of the general rule to this motion has led me to the following conclusion, viz.:

The paragraphs, Nos. 1, 2, 3, 4, 7, 8, 9, 11,12, 15,16,17,18, 21, 22, 23, 24, 25, 26, 27, 28, 35, 36, 37, 38, 41, 42, 43, 44, 45, " 46, 47, 48, 481, 50, 51, 52, 53, 56, 57, 60, 62, 63, 64, 65, 66, 67, 69, 72, should be stricken out.

I entertain some doubt as to other portions of this complaint, but it may be proper to allow them to" stand as connected with the general charge of conspiracy. If the whole complaint is sc* defective as not to make out a good cause of action, the remedy is by demurrer.

Motion to strike out the paragraphs numbered as above, granted ; and denied as to the residue. Costs to abide the event.