Palmer v. Day

New York Supreme Court

Palmer v. Day

44 Misc. 579, 90 N.Y.S. 133

DecidedAugust 15, 1904

StatusPublished

This text of 44 Misc. 579 (Palmer v. Day) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Palmer v. Day, 44 Misc. 579, 90 N.Y.S. 133 (N.Y. Super. Ct. 1904).

Pincite

Opinion

Blanchard, J.

This is an action to set- aside and declare invalid certain portions of a last will and testament and this motion is made under section 545 of the Code of Civil Pro[580]*580cedure to strike out several paragraphs of the complaint on the ground that they are irrelevant. There is little benefit-in motions of this kind and there may be much harm. Town of Essex v. New York & C. R. R. Co., 8 Hun, 361. Ho part of a pleading will be stricken out as irrelevant unless the court can see that the moving party is aggrieved by it and that striking it out will not harm the pleader. Stieffel v. Tolhurst, 32 Misc. Rep. 469; affd., 55 App. Div. 532. In Park v. Nat. Druggist Assn., 30 App. Div. 508, the court said: “ The nature of the relief itself frequently requires, not only that the ultimate facts from which the right to relief arises should be stated, but that facts which are somewhat collateral should be laid before the court so that the precise relief required to give the party what he is entitled to and the way in which that relief shall be granted may be understood. For that reason in actions of that nature greater latitude and liberality are allowed in the preparation of pleading than in other actions, and the power to strike out matter which is claimed to be irrelevant should be used with reluctance and caution.” As this is an action in equity I think the language quoted applies and that the motion to strike out should be denied, with ten dollars costs.

Motion denied, with ten dollars costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Blanchard, J.

This is an action to set- aside and declare invalid certain portions of a last will and testament and this motion is made under section 545 of the Code of Civil Pro[580]*580cedure to strike out several paragraphs of the complaint on the ground that they are irrelevant. There is little benefit-in motions of this kind and there may be much harm. Town of Essex v. New York & C. R. R. Co., 8 Hun, 361. Ho part of a pleading will be stricken out as irrelevant unless the court can see that the moving party is aggrieved by it and that striking it out will not harm the pleader. Stieffel v. Tolhurst, 32 Misc. Rep. 469; affd., 55 App. Div. 532. In Park v. Nat. Druggist Assn., 30 App. Div. 508, the court said: “ The nature of the relief itself frequently requires, not only that the ultimate facts from which the right to relief arises should be stated, but that facts which are somewhat collateral should be laid before the court so that the precise relief required to give the party what he is entitled to and the way in which that relief shall be granted may be understood. For that reason in actions of that nature greater latitude and liberality are allowed in the preparation of pleading than in other actions, and the power to strike out matter which is claimed to be irrelevant should be used with reluctance and caution.” As this is an action in equity I think the language quoted applies and that the motion to strike out should be denied, with ten dollars costs.

Motion denied, with ten dollars costs.

Cite This Page — Counsel Stack

Bluebook (online)

44 Misc. 579, 90 N.Y.S. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-day-nysupct-1904.

Opinion

Related

Cite This Page — Counsel Stack