Opinion
Action by Dean Murphy against A. S. Kirkeby, Inc., wherein defendant filed a motion to strike out certain allegations.
The District Court, Coxe, J., held that retention would prejudice defendant.
Motion granted.
Joseph Haskell, New York City, for plaintiff.
McLaughlin & Stern, New York City (Stephen S. Bernstein, New York City, of counsel), for defendant.
COXE, District Judge.
Assuming that evidence of prior similar losses may become admissible upon the trial— a matter for the trial judge to determine— the allegation of such losses is irrelevant and unnecessary to the cause of action pleaded. Retention of the allegation will prejudice the defendant, and it should be stricken. Best Foods v. General Mills, D.C.Del., 3 F.R.D. 459, 460-462; Contogeorge v. Spyrou, D.C.S.D.N.Y., 7 F.R.D. 223. Defendant's motion to strike is granted.