Ward v. Smallwood

12 A.D.2d 916, 210 N.Y.S.2d 867, 1961 N.Y. App. Div. LEXIS 12532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1961
• Status: Published

Opinion

Order, entered on September 12, 1960, granting defendants’ motion, pursuant to rule 103 of the Rules of Civil Practice, to strike from the complaint paragraph 15 and the last sentence of paragraph 17, unanimously affirmed, on the law and on the facts, with $20 costs and disbursements to the respondents. The matter stricken was evidentiary, or eonelusory and argumentative in some instances; and, in any event, it was unnecessary to a proper statement of plaintiff’s alleged cause of action. Thus, the exercise of discretion by Special Term to strike the same should not be disturbed. The plaintiff is not prejudiced thereby in that, nevertheless, such evidentiary matter as is contained in the stricken allegations may be received in evidence upon the trial if material and relevant to plaintiff’s alleged cause of action. (Gluck v. Pickel, 286 App. Div. 1071; Security Nat. Bank of L. I. v. Heaney, 20 Misc 2d 653.) Concur — Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.