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Chittenden v. San Domingo Improvement Co.

Appellate Division of the Supreme Court of New York, First Department
May 8, 1908
125 App. Div. 855 (N.Y. App. Div. 1908)

Opinion

May 8, 1908.

Frederick B. Woodruff, for the appellant.

Frederic W. Hinrichs, for the respondent.

Present — INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ.


The portions of the complaint which the defendant moved to strike out as redundant and irrelevant are mere recitals of evidentiary facts and are not necessary allegations of the cause of action set forth.

The defendant may and probably does desire to deny the allegations of employment of plaintiff's testator and the rendition of services by him. It is aggrieved because it may not be able to deny the evidentiary facts unnecessarily set forth in the complaint.

Where a pleading requiring an answer or a reply contains allegations of mere evidence not necessary to a statement of the cause of action or counterclaim or affirmative defense, the opposite party has the right to have such unnecessary allegations stricken out. ( Hamilton v. Hamilton, 124 App. Div. 619; Tradesmen's National Bank v. U.S. Trust Co., 49 id. 362.)

The motion should have been granted. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.


Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


Summaries of

Chittenden v. San Domingo Improvement Co.

Appellate Division of the Supreme Court of New York, First Department
May 8, 1908
125 App. Div. 855 (N.Y. App. Div. 1908)
Case details for

Chittenden v. San Domingo Improvement Co.

Case Details

Full title:CAROLINE SAYLES CHITTENDEN (Formerly CAROLINE M. HOLLS), as Sole…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 8, 1908

Citations

125 App. Div. 855 (N.Y. App. Div. 1908)
110 N.Y.S. 148

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