Rockwell v. Day

Laughlin, J.: The first cause of action alleged in the complaint, part of the allegations of which have been stricken out, is for the conversion by the defendants’ testator of 2,000 shares of the capital stock of the Broadway Rational Bank which it is alleged he had given to the plaintiff and she subsequently delivered to him to use temporarily. For the purpose of showing the inducement and consideration for the gift of the stock by the testator to her and her loaning it to him, and the intention of the testator in transferring the record title to her and her intention in delivering the stock to him, the plaintiff alleged that she was his favorite grandniece, lived for several years in his home, and was treated by him and.his wife as if she were their own child; that sometime prior to making the gift he told her that for the purpose of securing her future welfare, in 'case he should be suddenly taken away, he intended to give her his bank stock; that at this time he was president of the bank and owned a large [439] amount of its capital stock, and was a man of great wealth, and that at the time he had the stock transferred to her name upon the books of the bank and delivered it to her he said: “ I have always intended that you should have this stock of the bank, and I might as well give it to you now as ever, so here it is.” These are the allegations that were stricken out as irrelevant. They are more in the nature of evidence than of the facts essential to be pleaded in an action at law. If the action were in equity there could be no doubt that this pleading was proper (First Presbyterian Church v. Kennedy, 72 App. Div. 82; Park & Sons Co. v. Nat. Druggists’ Assn., 30 id. 508; Meyer v. Young, 49 id. 639), but it being an action at law, it would have been sufficient for the plaintiff to have alleged ownership of the stock, its delivery to the testator for temporary use and conversion by him. (Park & Sons Co. v. Hubbard, 30 App. Div. 517; Schroeder v. Young, 49 id. 640; Wooden v. Strew, 10 How. Pr. 48; Brown v. Fish, 37 Misc. Rep. 367.) It does not follow, however, that such allegations which are briefly and concisely stated in connection with the allegations of ownership, and are germane to the issue, should be stricken out as irrelevant or redundant. They are all relevant to the issue, and the evidence will be admissible upon the trial. They do not tend to confuse the issue or render the pleading unduly voluminous. We fail to see how the defendants are prejudiced by the allegations. If they admit the plaintiff’s ownership, the allegations stricken out become immaterial, and if they put the ownership in issue, they can, without embarrassment or prejudice, at the same time put these allegations in issue by one of the forms of denial authorized by the Code of Civil Procedure (§ 500), unless of their own personal knowledge they know the allegations to be true, in which event, if the allegations are not put in issue, they will stand admitted for what they are worth. Of course, the plaintiff would not be a competent witness to prove these transactions with the testator if the evidence should be objected to, but she may be able to prove them by others. It is not probable that the plaintiff will secure any advantage by obtaining an admission by the pleadings of any of these allegations which she could not prove. It is scarcely a possibility that the executors were present and heard these statements alleged to have been made by the testator, so that they are not in a position to put them in issue. Motions of this character are not favored by [440] the courts, and should not be granted unless it is apparent that the moving party will be prejudiced by allowing the irrelevant or redundant allegations to stand. (Bogardus v. Metropolitan Street Railway Co., 62 App. Div. 377; Tradesmen’s National Bank v. U. S. Trust Co., 49 id. 362; Stokes v. Star Co., 69 id. 21; Williams v. Folsom, 57 Hun, 128.) In the case at bar we are of the opinion that instead of the deféndants being prejudiced by these allegations, they are to their advantage, inasmuch as they limit .the plaintiff in her proof and render unnecessary a bill of particulars. Upon the peculiar facts of this case, therefore, we are of opinion that the motion shoiild have been denied. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, without costs, Patterson, O’Brien and Hatch, JJ., concurredIngraham, J., concurred in result. Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.