165 Misc. 517 | N.Y. Sup. Ct. | 1937
This action is in equity and seeks equitable relief to set aside alleged fraudulent transfers of a debtor corporation and to recover illegal preferences pursuant to
Motions are also made to the sufficiency of the causes of action alleged. The first, third and fifth causes of action are brought under the provisions of section 15 of the Stock Corporation Law. The error claimed is the use of the words “ alleged claims,” which is equivalent to saying that they were alleged creditors rather than creditors. While there is little doubt as to the correctness of the allegations in the complaint, all possible doubt is eliminated by the proffered stipulations of counsel that the word “ alleged ” be stricken from the complaint. Let plaintiff file a stipulation to that effect and the motion in this respect is denied.
The defendants also move to strike out paragraphs 11, 12, 17 to 54, inclusive, 73, 74 and 80 as irrelevant and scandalous. These allegations refer to the findings in the previous action claimed by the defendants to be res adjudicata of the present one. All these parties were originally parties to that action. The court in that action found findings against three of the defendants who are parties here. The findings are binding upon them. (Slater v. Slater, 208 App. Div. 567; Cohen v. Rosedale Realty Co., Inc., 120 Misc. 416; Robinson Co. v. Security Mutual Life Ins. Co., 176 App. Div. 880; affd., 222 N. Y. 713; Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 id. 304.) If there is any doubt as to the admissibility of the findings against the remaining defendants that may be taken care of by the trial justice. Certainly there is no basis for this motion to strike out as irrelevant and scandalous and it is denied.
The defendants move to make the complaint more definite and certain. This motion is denied as to paragraphs 58, 89, 109, 110 and 112, upon the stipulation that the word “ alleged ” be eliminated. It is denied as to paragraphs 77, 102 and 129 because it is merely captious to maintain after reading the entire complaint that anything else is alleged except that the plaintiff represents all the creditors.
Motions are denied.