In re Emberger

24 A.D.2d 864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1965
• Status: Published

Opinion

In a proceeding to settle the account of testamentary trustees, the objectant appeals from so much of an order of the Surrogate’s Court, Queens County, entered April 23, 1965, as granted the trustees’ motion and dismissed paragraphs 3, 4, 5 and 9 and parts of paragraphs 6 and 8 of the objections. Order, insofar as appealed from, reversed, with costs to all parties filing separate briefs, payable out of the trust, and motion denied in its entirety. The Surrogate apparently struck out certain of the objections, as aforesaid, on the ground that the same were irrelevant, as contended by the trustees. Since the advent of the CPLR, however, which is applicable to the Surrogate’s Court (CPLR 101; Surrogate’s Ct. Act, § 316), a motion does not lie to strike out parts of a pleading for mere irrelevancy, as it formerly did under rule 103 of the Rules of Civil Practice. Now the only ground for a motion to strike is that there is “ scandalous or prejudicial matter unnecessarily inserted in a pleading.” (CPLR 3024, suhd. [b].) The allegations of the objections are neither scandalous nor prejudicial, and respondents do not contend otherwise. Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.