221 A.D. 438 | N.Y. App. Div. | 1927
This is an appeal from an order at Special Term striking out certain allegations of the complaint upon the grounds that the same are unnecessary, immaterial and tend to prejudice, embarrass and delay a fair trial.
The complaint covers sixty-one pages of the record and the court has stricken out approximately one-third of the matter contained therein. The theory of the action, as stated by the plaintiffs in their brief, is that it is one to recover damages for alleged fraud on the part of the defendants, consisting of various misrepresentations and a course of conduct extending over some period of time and involving many different though related transactions.
It is difficult from a reading of the complaint to form a clear picture of the matters complained of, as the transactions are so involved and set forth at such length that the very minuteness and fullness of the pleading make it confusing. The justice at Special Term has evidently considered these allegations very carefully and has stricken from the complaint those which in his opinion are irrelevant, evidentiary and unnecessary, but it is with danger that the court may take it upon itself to redraft a pleading of this nature for the parties.
The plaintiffs have, in their complaint, in effect set up their case, introduced their evidence and presented their argument, and to cull from all these averments such as may be material to their cause of action and present them in a clear and coherent form would necessitate a complete rewriting of the complaint. Should this court undertake such a task it might well be that some allegations stricken out would prove relevant upon the trial of the issues and necessary in the pleading, though they are at present obscured by the manner in which they are set forth and the evidentiary and irrelevant matter with which they are interwoven.
The complaint cannot be allowed to stand in its original form.
“ It is not fair to a defendant to compel him to determine at his peril what particular allegation in a great mass of clearly irrelevant matter may be held upon the trial to be material. This unfairness is accentuated when many of the allegations are astutely connected with innuendos which render a categorical denial or admission impossible. Turning to. the particular complaint before us we find that it violates every rule of good pleading to which we have
The order should be affirmed, with ten dollars costs and disbursements to each defendant filing separate brief herein.
Cochrane, P. J., Van Kirk, Davis and Whitmyer, JJ., concur.
Order affirmed, with ten dollars costs and disbursements to each defendant filing separate brief herein.
