McGarahan v. Sheridan

Laughlin, J.: The plaintiff, alleges that between the years 1870 and 1880 she resided with one Michael Healy as a member of his household, and at- his request performed' for him certain offices of a domestic character and advanced moneys to¡ him for the maintenance and improvement of certain real property described in the complaint, upon the understanding and agreement that she should have an — 534 — interest' therein; that in JL891 he deeded the property to his daughter Eliza J. Healy upon the express agreement that it should he held for her benefit and for the benefit of the plaintiff during their joint lives, and in the event, that the daughter predeceased the plaintiff that the plaintiff should become the sole owner of the property; that in the year 1894 the said Eliza J. Healy contracted with the plaintiff concerning said property, that if tfie plaintiff should continue to,live with and care- for her and manage the property and — 535 — interests of said Eliza J. Healy as long as she should live the said Eliza J. Healy would give and leave the said real property to the plaintiff; that the plaintiff fully performed said several agreements on her part and the said Eliza J. Healy died without conveying or leaving said real property to the. plaintiff. The action is brought against the heirs and administrator of said Eliza J. Healy for specific performance of the agreement and. for a decree directing her administrator to pay over the proceeds of the sale of one parcel of — 536 — the property soldi and conveyed by said decedent in her lifetime; and a receiver of the rents, and an injunction pendente lite is demanded. Paragraph 6 of the complaint, which has been stricken out, alleges that the services rendered by the plaintiff to the decedent were- of a peculiar nature and of s.uch a character that they cannot be read-iHy measured and are not capable of exact ascertainment or value- in money,, but were of great value and benefit.'to the- decedent — 537 — and were so. appreciated and regarded by her. The allegations of paragraph T of the complaint, stricken out, are to the effect that the decedent left no relatives who had resided with her or who. were dependent, upon her or to¡ whom she owed "any legal' or moral duty to care' or provide for, or who were in any manner entitled to a claim upon her bounty or lived on terms, of intimacy or cordiality with her- or with her father. The allegations, of paragraph 10, stricken out, are to the effect that part of the proceeds, of the sale of one of — 538 — the parcels was by the mutual consent of both the decedent and plaintiff, and by them both deposited in a vault of the Knickerbocker Trust Company, to which the decedent and the plaintiff each received and retained a key, and part was by them deposited in the Emigrant Industrial Savings Bank and- part was used and expended in the payment of certain charges against the properties in question and incidental expenses connected therewith, and part was expended by like consent as. a gift for a church altar. It is to be. borne in mind that this is a suit in equity, and one of the class where clear and satisfactory evidence is required to warrant a decree for specific performance. It has often been held that in a suit in equity the pleader is not confined with the same degree of strictness to alleging the material facts only as in an action at law. (First Presbyterian Church v. Kennedy, 72 App, Div. 82.) In the main the allegations stricken out are allegations of inducement, and are permissible in a complaint in equity. The defendants are not aggrieved by the allegations, and, on the contrary, it would seem that by disclosing the plaintiff’s theory of the basis for the contract the defense would be benefited by being the better enabled so prepare to meet the plaintiff’s proof. The suit being in equity and it not appearing that the moving party was'prejudiced by these allegations they should not have been stricken out. (Bogardus v. Met. St. R. Co., 62 App. Div. 376; Rockwell v. Day, 84 id. 437; Uggla v. Brokaw, 77 id. 310.) It follows, therefore, that the order, in so far as it is appealed from, should be.reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.