Hackert v. Baeck

253 A.D. 821, 1 N.Y.S.2d 347, 1938 N.Y. App. Div. LEXIS 8770

Opinion

Action for damages caused by the alleged fraud of the defendants, resulting in the purchase and retention of certain stock by the plaintiff. Order denying motion of defendant Baeck to strike out paragraphs twenty-fifth and twenty-sixth of the complaint under Civil Practice Rule 103, on the ground that they are unnecessary and may tend to prejudice and embarrass a fair trial, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. At best these paragraphs constitute an allegation of evidentiary facts and have no proper place in the complaint. Their admissibility can best be determined on a trial in connection with the allegations of ultimate fact in the complaint (paragraph twenty-fourth) that the stock was and continued to be worthless. (Isaacs v. Washougal Clothing Co., Inc., Nos. 1, &, 233 App. Div. 568, 571; Powers v. Ridder, 142 id. 457.) Hagarty, Carswell, Davis, Adel and Close, JJ., concur.