
    Valentine Kolb and Joseph G. Gessford, for Themselves and on Behalf of the Other Stockholders of the Metbopolitan Underwriting Company and Columbia Life Assurance Society, and Other Persons Similarly Situated, Respondents, v. Mobton L. Mortimer, Individually and as President and Director of the Metropolitan Underwriting Company and Others, Appellants, Impleaded with Samuel W. Tate, Individually and as Secretary, Treasurer and Director of Said Company, and Others, Defendants.
    First Department,
    December 30, 1909.
    Pleading — irrelevant allegations—legal conclusions and matters of evidence — pleading in equity — defendant aggrieved by redundant allegations— party — stockholder’s action — necessary allegations.
    Irrelevant allegations in a pleading which may be stricken out under section 548 of the Code of Civil Procedure are those which have no substantial relation to . the'eontroversy between the parties and which cannot affect the result. 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 and allegations of mere evidence will be stricken out as redundant.
    A seems, that while more latitude in pleading is allowed in equity suits than in actions at law, the rules of pleading should be measurably enforced:
    Matters may be alleged which appeal to the equitable conscience of the court, but they must be germane to the issue's.
    
      A defendant called upon to answer irrelevant and redundant matter is a “ person aggrieved thereby," so as to bo entitled to strike it out.
    A stockholder suing on behalf of himself and others similarly situated, to recover from directors charged with waste must allege, first, a cause of action in favor of the corporation stated in the same manner as would be proper in case the corporation itself brought the action and, second, facts which entitle the plain- - .tiff to maintain the action in place of the corporation, that he is a stockholder and that the corporation itself has either refused or unreasonably failed to sue. Complaint in such action examined, and certain allegations stricken out as irrelevant and redundant.
    Clarke, J., dissented.
    Appeal by the defendants, Morton L. Mortimer and others, from an order of the Supreme Court, made at the Mew York Special Term, bearing date the lltli day of September, 1909, and entered in the office of the clerk of the county of Mew York.
    
      Alfred T. Damson, for the appellants.
    
      Edwin B. Leavitt, for the respondents.
   Scott, J.:

Appeal from an order denying defendants’ motion t.o strike out certain parts of the complaint as irrelevant and redundant. The general principles which should (but Seldom do) determine the form of a complaint are well understood. The fundamental rule is that prescribed by section 481 of the Code of Civil Procedure, that a complaint must contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” Section 545' provides that “ Irrelevant, redundant or scandalous matter contained in a pleading may be stricken out upon the motion of a person aggrieved thereby.” 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. (Park & Sons Co. v. Nat. Druggists’ Assn., 30 App. Div. 508; Dunton v. Hagerman, 18 id. 1461) 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. Hatter 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 / y issue. (Bradley v. Sweeny, No. l, 120 App. Div. 315; Hamilton v. Hamilton, 124 id. 619; Chittenden v. San Domingo Improvement Co., 125 id. 855.)

The necessity of answering irrelevant and redundant matter brings a defendant, when moving to strike out the same, within the meaning of section 545 of the Code of Civil Procedure as a person aggrieved thereby.” (Hamilton v. Hamilton, supra.) Turning now to the complaint in the present case, we find that it attempts to set forth a cause of action by- two stockholders of the Metrópoli-' tan Underwriting Company and the Columbia Life Assurance Society, suing in behalf of themselves and other stockholders similarly situated. The purpose óf the action is to recover from the individual defendants, directors of one or other of the above-named corporations* damages for certain alleged illegal acts whereby the assets of said corporations have been lost or wasted. What such a complaint should contain lias, been distinctly set forth by the Court' of Appeals. It should allege: First. The cause of action in favor of the. corporation, which should be stated in exactly the same manner and with the same detail of facts as would be proper in case the corporation itself had brought the action. Second. The facts which entitle the plaintiff to maintain the action in place of the corporation, that he is a stockholder 'therein, and that the corporation itself has either refused or unreasonably failed to bring the action.' Ordinarily, no other allegations are necessary or material. (Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121.) The 3d and 4th paragraphs of the complaint allege that the Columbia Life Assurance Society was incorporated by the Metropolitan Underwriting Company, and that said assurance society was caused to be incorporated by said underwriting company and owned- and controlled by it. These allegations, strictly speaking, cannot be true, for one corporation cannot incorporate another, and, if true in. any sense, are irrelevant. They should, therefore, be stricken out. The allegations in the 21st and 22d paragraphs, of the respective .sums which plaintiffs paid for their stock, and the allegations in the 49th, 50th and 51st paragraphs as to the special damages alleged to have been suffered by plaintiffs and other stockholders, are irrelevant and must be stricken out. (Kavanaugh v. Commonwealth Trust Co., supra.) Paragraphs 10 to 17, inclusive, and 18 to 23, inclusive, are irrelevant, and should be stricken out. They relate to the details of a foreclosure action, which is not and cannot be collaterally attacked in this action. Paragraph 30 is also irrelevant, as alleging no fact, but merely the opinion of the pleader. All that it is necessary to allege on the subject is contained in the following paragraph. Paragraphs 34 to 37, inclusive, are irrelevant, and should be stricken out. They contain the history of a foreclosure suit in which the real property mentioned in the complaint was sold before any defendant had to do with it. If it should be necessary or proper to show what it then sold for, this can be done without pleading the history of the suit in detail. Of course it could only be proper or material upon a showing that some of the defendants knew of the price bid on the sale, which is not alleged. So much of paragraph 48 as sets forth the sources of plaintiff’s information and belief as to certain matters is irrelevant and must be stricken out. The foregoing comprise the most obviously irrelevant allegations of the complaint which, even as thus pruned, is far from a model pleading. There are other allegations which should perhaps, if the rules of pleading were strictly applied, be stricken out. To do so, however, might embarrass the plaintiff in making proof in what is evidently a somewhat complicated case.

The order appealed from must be reversed, and the motion to strike out granted to the extent indicated above, without costs to either party, with leave to plaintiff to serve an amended complaint within twenty days.

Ingraham, McLaughlin and Lahghlin, JJ., concurred; Clarke, .J., dissented.

Order reversed, without costs, and motion granted to extent stated in opinion. Settle order on notice.  