Muller v. McCormick

Action to recover broker’s commissions claimed to have been earned by plaintiff under a contract of employment by the defendants. Order denying motion under rule 103 of the Rules of Civil Practice, to strike out five paragraphs of the second amended complaint as irrelevant and prejudicial, and under rule 102 of said Rules, to make more definite and certain some of the allegations of three paragraphs of the complaint, insofar as appealed from, affirmed, with $10 costs and disbursements, with leave to plaintiff to serve a further amended complaint within ten days from the entry of the order hereon. The exercise of discretion by the Special Term may not be disturbed. It does not appear that the presence in the complaint of the matter attacked aggrieves the defendants. (3 Carmody on New York Pleading and Practice, § 1034, p. 2222 et seq.‘, Cleminshaw V. Goon, 136 App. Div. 160.) The relief herein sought could have been invoked on the prior motion, hence in the exercise of discretion was properly denied on this motion. (Bodge v. Campbell, 223 App. Div. 471, 476.) Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.