Lynch v. Second Avenue Railroad

O’Brien, J.: The portions stricken out of the amended complaint consisted in substance of an allegation in paragraph “ third,” that “ the plaintiff’s intestate boarded and got upon the front platform of one of the defendant’s street cars,” and the further allegation that the plaintiff’s intestate was thrown “off and from the said platform of said car.” Also the whole of paragraph “ fourth,” which was as follows: “ Fourth. Upon information and belief that at all the times herein mentioned the defendant company had a rule, regulation and custom whereby its agents aiid servants directed and permitted passengers that were smoking to stand upon the front platform of its closed ears, and that smoking elsewhere upon its said closed street cars was and is prohibited.” In disposing of this appeal the settled rules of pleading may be briefly referred to. A pleading may state facts as they actually exist or according to their legal effect. “ In most cases either mode of pleading, at the option of either party, is correct.” (The New York News Publishing Co. v. The National Steamship Co., 148 N. Y. 41; Bennett v. Judson, 21 id. 238; Farron v. Sherwood, 17 id. 227; Barney v. Worthington, 37 id. 112.) That the plaintiff’s intestate “ boarded and got upon the front platform of one of the defendant’s street cars,” or that he was thrown “ from the said platform of said car,” are not irrelevant statements, but allegations of the actual facts. It will frequently happen that, where a pleading alleges the facts according to their legal effect, the opposite party, to obtain knowledge as to the proof which he is obliged to meet on the trial and thus avoid being surprised, is obliged to move either for a bill of particulars or to make the complaint more definite and certain. (See cases cited above.) As the getting on and riding upon the front platform might, upon proof that it was contrary to the rules of the road, which, under the [166] General Railroad Law, would relieve the defendant from liability, render it necessary to furnish a reason or excuse for the conduct of plaintiff’s intestate, this is what plaintiff attempted to do by pleading in the fourth paragraph of the complaint that the defendant had a rule which “ permitted passengers that were smoking to stand upon the front platform of its- closed cars.” It may well be that, the failure to connect plaintiff’s intestate with this allegation by stating that he was smoking, etc., or the failure to prove such facts, may prevent defendant’s rule being available as an excuse, but this •is quite different from concluding that it is so irrelevant as to justify its being stricken out. And though it may be unnecessary to allege in á complaint what it is essentially necessary to prove upon the trial, that plaintiff’s intestate- was free from contributory negligence (Hackford v. N. Y. C. R. R. Co., 6 Lans. 381; affd., 53 N. Y. 654; Lee v. Troy C. G. L. Co., 98 id. 115), still it is not improper to plead or allege that fact. We do not mean to pass upon the effect or sufficiency of the allegation, our purpose being to show that the paragraph is germane to the subject of the action and may be a link in the chain of proof, and, therefore, matter proper to be given in evidence. It has been held that a motion to strike out, alleged irrelevant matter should be granted “ with reluctance and caution ” and “ only where no doubt-exists of the irrelevancy charged. * * * There is still another rule * * * and that is, :there must, be some evidence that the retention of the allegations would embarrass the defendants in their defense — something shown establishing harm or injustice.” (Williams v. Folsom, 57 Hun, 128; Town of Dunkirk v. Lake Shore, etc., Ry. Co., 56 N. Y. St. Repr. 767; S. C., 75 Hun, 366.) We think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. - Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred. Order reversed, with ten dollars costs, and disbursements, and motion denied, with ten dollars costs.