Keuka College v. Citizens National Bank of Wellsville

139 Misc. 324, 248 N.Y.S. 750, 1931 N.Y. Misc. LEXIS 1173

• Court: New York Supreme Court
• Decided: February 21, 1931
• Status: Published

Opinion

Rodenbeck, J.

There is but one cause of action stated in the complaint. It is based on a gift, first orally expressed and then reduced0 to writing, on the strength of which gifts from others Were obtained. (M. H. Metal Products Co. v. April, 251 N. Y. .) The allegations as to the oral agreement are material as bearing upon performance and upon the balance due when the written agreement was made. The allegation with reference to the provision in the will is a confirmation of the written agreement, which may or may not be necessary depending upon the issue that may be raised by the answer. The allegations of performance are necessary as bearing upon thp application of the Statute of Frauds. Motions to strike out redundant matter are not favored, since they do no harm and can more advisedly be ruled on when the case is tried. The practice in relation to pleadings has been liberalized in recent years and pleadings are not now construed with that nicety of phrase and balance of words as formerly when the practice of the law was more of a game than it is at present.

Motion denied, with ten dollars costs to abide event.

So ordered.