Solomon v. LaGuardia

267 A.D. 435, 46 N.Y.S.2d 701, 1944 N.Y. App. Div. LEXIS 4744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1944
• Status: Published

Opinions

Memorandum by the. court.

In separate causes of action plaintiff sues to recover damages for libel, slander and malicious prosecution, alleged to have resulted from a conspiracy entered into by defendants. o Appellants moved under rule 103 of the Buies of Civil Practice to strike out the allegations contained in paragraphs “ Seventh” to “ Fortieth”, inclusive, of the complaint. The motion was denied and this appeal followed.

Order affirmed, with ten dollars costs and disbursements, and appellants’ time to answer is extended until ten days from the entry of the order hereon. Motions to strike out parts of a pleading as unnecessary and improper are not favored (Goodrow v. New York American, Inc., 233 App. Div. 37, 40) and will be denied unless the court can clearly see that the allegations sought to be stricken out have no possible bearing on the subject matter of the litigation. (Gerseta Corp. v. Silk Assn. of America, 220 App. Div. 302, 305.) On the argument it was conceded that the matters sought to be stricken out would be a proper subject of proof and, therefore, the presence of such matters in the complaint involves no prejudice and will not tend to embarrass or delay the fair trial of the action. (Rules Civ. Prac., rule 103.) As such motions are addressed to the sound. discretion of the court, which is to be exercised ■ with caution (Dodge v. Campbell, 223 App. Div. 471; Wayte v. Bowker Chemical Co., 196 App. Div. 665), it may not be said that the Special Term erred in denying the motion, particularly in this type of action, where greater latitude in pleading is permitted. [See post, p. 957.]

Carswell, Johsstos, Lewis and Aldrich, JJ., concur; Close, P. J., dissents and votes to reverse the order and to grant the motion in opinion.