2 A.D.2d 878 | N.Y. App. Div. | 1956
The allegations of the complaint state but one cause of action in the individual right of plaintiffs. With the exception of the plaintiff Eileen Reynolds Power, all of the plaintiffs have capacity to sue in their own right. The motions to dismiss the complaint and to require a separate statement of causes of action were therefore properly denied. The allegations in paragraphs 12, 13 and 14 of the complaint respecting the heirship of unrepresented interests are irrelevant and confusing and should be stricken on the motion made under rule 103 of the Rules of Civil Practice. The forepart of those paragraphs identifying the unrepresented interests and indicating that they are awaiting representation through estate administration may remain as explanatory matter. The inclusion of Eileen Reynolds Power as party plaintiff is plainly unwarranted, but none of the motions made at Special Term would reach this misjoinder. We may expect it to be corrected, however, in the amended complaint which should be served omitting the matters stricken. ' The order appealed from is unanimously modified by striking from paragraph 12 all of the allegations after the word “ appointed ” in the 7th line, from paragraph 13 all of the allegations after the word “ appointed ” in the 8th line, and from paragraph 14 all of the allegations after the word “ estate ” in the 10th line and, as so modified, affirmed, with $20 costs and disbursements to the appellants. Settle order on notice. Concur — Peck, P. J., Breitel, Cox, Frank and Bastow, JJ. [See post, p. 887.]