Isaacs v. Salomon , 144 N.Y.S. 876 ( 1913 )

Scott, J.:

Although this is an action in equity it is of the simplest character. Plaintiff seeks to rescind a sale of stock by defendants, upon the ground that he was induced to buy through false representations made by defendants, with knowledge of their falsity, and upon which he relied. The sale is said to have taken place on October 30, 1912. In addition to the usual and material allegations to be found in a complaint for such a cause of action, the plaintiff has inserted a large number of allegations having no apparent relevancy to the cause of action and no visible materiality upon any of the issues tendered by the complaint. The only answer made to the motion to strike out these irrelevant allegations is that because the action is in equity greater latitude of pleading is permissible than would be allowed in an action at láw. But this general rule is not to be extended so far as to permit obviously irrelevant matters to remain in a pleading. It is made the plain duty of the court by section 545 of the Code óf Civil Procedure to strike such matter out, to the end that the issues to be tried shall be sharply and clearly defined before the cause comes to a trial. As was said by this court in Kolb v. Mortimer (135 App. Div. 542): “Irrelevant allegations are those which have no substantial relation to the controversy between the parties and which cannot affect the result, and the test .of., any allegation is to inquire whether it tends to constitute a cause of action or a defense. * * * Statements of the legal conclusions of the pleader are redundant and should be stricken out, as should also statements of mere matters of evidence. Somewhat more latitude is, of necessity, given in equity suits than in actions at law, but even in equity the rules of pleading should be measurably enforced. Matter may be inserted which appeals to the equitable conscience of the court, subject, however, to the limitation that the matter so pleaded must be germane to the issues, or have some relation to them, and must not raise an alien issue or confuse the real issue. ” (Park & Sons Co. v. Nat. Druggists’ Assn., 30 App. Div. 508; Dunton v. Hagerman, 18 id. 146; Bradley v. Sweeny, No. 1, 120 id. 315; Hamilton v. Hamilton, 124 id. 619; Chittenden v. San Domingo Imp. Co., 125 id. 855.) It is also well settled that the vice of irrelevancy is much more serious in a complaint than in an answer. Applying these rules to the case at bar it is evident that the complaint contains much matter which should be stricken out, keeping in mind the fact that the sale complained of took place in October, 1912, and consequently the fraud, if any there was, must have been committed at or before that time. In fact the representations which are alleged to have been false are charged as having been made “in or immediately prior to the month of October, 1912.” We are unable to see how the allegation in the 3d paragraph of the complaint as to the original capitalization of the M. Eumely Company in 1887, or the issue of preferred stock in 1909, has any relevancy, nor how it is relevant to allege that the stock of the company or a part of it was listed on the New York Stock Exchange, or that in February, 1913, some months after the sale complained of, the company issued convertible notes. So much of the 3d paragraph of the complaint as is affected by the motion should, therefore, be stricken out. The allegations sought to be stricken out of the 4th and 6th paragraphs, although remote, may be relevant upon the question of defendants’ scienter and good faith in making the representations complained of. They will not, therefore, be stricken out. The allegations sought to be stricken out of the 9th, 10th and 11th paragraphs refer-exclusively to matters which took place long after the sale had been made to plaintiff and his right to rescind, if he ever had such a right, accrued. They are clearly irrelevant to the cause of action to rescind the sale of the stock and must be stricken out. So far as concerns the motion to make specified paragraphs more definite and certain, the relief sought can be more appropriately obtained by a motion for a bill of particulars.

The order appealed from will, therefore, be reversed and the motion granted to the extent above indicated, without costs to either party.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed and motion granted to the extent stated in opinion, without costs to either party.