Vogt v. Vogt

86 A.D. 437, 83 N.Y.S. 677, 1903 N.Y. App. Div. LEXIS 2384

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinion

Jenks, J, :

Such motions are not encouraged or granted save on grievance shown. (Tradesmen’s Nat. Bank v. U. S. Trust Co., 49 App. Div. 362, 366 ; Howard v. Mobile Co. of America, 75 id. 23 ; Stieffel v. Tolhurst, 55 id. 532, citing Park & Sons Co. v. Nat. Druggists’ Assn., 30 id. 508.) The relief is largely in the discretion of the "court. (Howard v. Mobile Co. of America, supra) Van Brunt, P. J., in Stokes v. Star Co, (69 App. Div. 21), very justly says: “ 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.” Allegations are not stricken out if their only fault is the pleading of evidence. (Tradesmen’s Nat. Bank v. U. S. Trust Co., supra) It may be that the judgment pleaded in the paragraph attacked cannot be competent as an estoppel or as res adjudicata. Suffice it to say that the trial court will pass upon the question if presented^ and we need.not; and, passing upon it, the court will, doubtless, protect the defendants by the rules of evidence. • But we cannot forecast from the pleadings that some of the allegations of said paragraph, if proven, may not be competent, relevant and material on the questions of fraud, deceit and conspiracy. I think that "the learned Special Term, Marean, J., presiding, properly denied the motion.

The order should be affirmed, with ten dollars costs .and disbursements.

. Bartlett, Woodward, Hirsohberg- and Hooker, JJ., concurred

Order affirmed, with ten dollars costs and disbursements.