Stokes v. Star Co.

69 A.D. 21, 74 N.Y.S. 528

Opinion

Van Brunt, P. J.:

We are of the opinion that motions of this kind should be granted only in cases where it is evident that the allegations questioned, if allowed to remain as a part of the record, will work an injustice to the moving party. It is often difficult to determine upon pleadings themselves whether or not allegations contained therein will be irrelevant and redundant when the facts are developed upon the trial, as the course of the evidence frequently makes that, which at first blush might seem irrelevant to be pertinent to the peculiar phase which the case assumes. In the case at bar it may be that certain of the allegations stricken out will be irrelevant There are others which, are clearly pertinent, and it should be left to the trial court to determine as to whether evidence should be allowed in support of .these allegations or not. There are none of them which can in any way injure the plaintiff or put him to any disadvantage in the trial of the case. We think, therefore, that the motion should have been denied.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs to abide event.

O’Brien, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars .costs to abide event.