d'Espinay v. Gilchrist

282 A.D. 662, 122 N.Y.S.2d 140, 1953 N.Y. App. Div. LEXIS 4572

Opinion

While motions to strike matter from a pleading under rule 103 of the Rules of Civil Practice are not generally regarded with favor by the court, the allegations in the complaint in this action relating to the residence of the parties has no possible relevancy to the motion and should not be drawn into issue. The evidentiary matter objected to has no apparent necessary connection with the action and requiring defendant to plead thereto might likewise put in issue matter which is objectionable. We do not mean to indicate one way or the other as to whether the evidence with respect to the cheeks should be admitted. That can await the showing at the trial. The plaintiff cannot be prejudiced by striking the matter from the pleading, and the defendant may be saved prejudice thereby. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. Present — Peek, P. J., Glennon, Cohn, Callahan and Breitel, JJ.