Joseph v. Ervolina

285 A.D. 1218, 141 N.Y.S.2d 96

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1955
• Status: Published

Opinion

—■ Order as to ordering paragraphs fifth, eighth, and ninth affirmed; otherwise order reversed, with $10 costs and disbursements and motion under rule 103 of the Rules of Civil Practice granted and plaintiff directed to serve an amended complaint within twenty days, omitting all objectionable matter, upon payment of $10 costs and the costs of this appeal. Memorandum: The complaint as a whole offends every rule of good pleading and calls for the application of our decision in Isaacs V. Washougal Clothing Go. (233 App. Div. 568, 572), “ The purpose of pleadings is to present and define the issues to be tried and determined, and not to confound and befog them. * * * The court should not be compelled to wade through a mass of verbiage and superfluous matter in order to pick out an allegation here and there, which, pieced together with other statements taken from another part of the complaint, will state a cause of action.” On defendants’ motion under rule 103 of the Rules of Civil Practice, therefore, the court held that “ the plaintiffs should be required to serve amended complaints omitting all objectionable matter.” The order appealed from also directs that defendants submit to an examination before trial. This was error in the absence of the service of an answer. (Punía V. Dry Dock Sav. Bank, 280 App. Div. 431; Welsh v. Cowles Shipyard Co., 200 App. Div. 724.) All concur. (Appeal from an order denying defendants’ motion for an order compelling plaintiffs to make their complaint more definite and certain and to dismiss the complaint.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.