Stokes v. Leary

66 N.Y.S. 822 | N.Y. App. Div. | 1900

PER CURIAM.

.The court below denied a motion to strike out. from a reply certain matters claimed to be irrelevant, redundant, and scandalous. Upon an appeal from the order entered upon that motion our attention is called to pleadings which may be described as models of diffuseness and circumlocution. The action appears to have been brought to recover upon four promissory notes, but there are allegations relating to the original transaction in which the notes were given, and upon which the plaintiff claims, that in reality the cause of action is to recover part of the purchase price of shares of stock sold by the plaintiff to one Policy and the defendants and one McDonald, now deceased. The answer does not treat the complaint as declaring solely on the notes, but puts in issue allegations referring to the original agreement and the consideration of .the notes. The defendants also, by way of separate defenses and counterclaims, set up a variety of matters connected with the transaction of the alleged sale of shares of stock by the plaintiff to Polley and the other parties, and it is sought to recover from the plaintiff large sums of money by reason of those counterclaims. The plaintiff, in his reply, sets forth in minute detail the history of transactions connected with the subject of the counterclaims, and a great mass of alleged facts, the evidence of his version of those transactions. The court below denied the motion to strike out parts of the reply, intimating that, although it might be open to the criticism of redundancy, inasmuch as the defendants would not have to answer the allegations they seek to have stricken out, it was not apparent how those allegations were prejudicial. With respect to much of the matter objected to in the reply the view expressed by the court below may be adopted, but there are certain portions of that reply which should not be permitted to stand. They are harmful to the defendants, and may justly be called scandalous. They are those matters objected to in the second, fourth, and fifth sections or subdivisions of the notice of motion:' We think the order should be reversed, and the motion to strike out parts of the reply granted as to the matters above particularly specified.

Order reversed, with $10 costs and disbursements, and the motion to strike out granted, as above indicated, with $10 costs.