
    The Barney & Smith Car Co., Plaintiff, v. The Syracuse Rapid Transit Railway Co. et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    June, 1898.)
    Conspiracy — Facts showing the probability thereof and reasons therefor will not be stricken out.
    Where the complaint in an action for a conspiracy whereby the defendants are alleged to have obtained street cars without payment, alleges the purpose sought to be accomplished by obtaining the cars, and the reasons why the defendants formed the- plan of so doing, the court will not strike out as irrelevant and scandalous other paragraphs which state facts bearing upon the probability of and furnishing a reason for the purposes alleged to have been formed by the defendants.
    Motion to strike out paragraphs 5 -and 6 of the plaintiff’s complaint as irrelevant and scandalous.
    Stone, Gannon & Petit, for motion.
    W. S. Andrews, opposed.
   Hiscock, J.

This is an action to recover damages claimed to have been sustained through the alleged fraudulent acts, and conspiracy of the defendants, whereby they obtained from :the plaintiff, without paying therefor, a large amount of street cars.

The purposes which defendants sought to accomplish by obtaining these cars, and the reasons why they formed the. plan of so doing, as claimed, are set forth quite fully in paragraph 11 of the. complaint. 1

I think it would be proper for plaintiff to prove the facts set forth in the paragraphs attacked by this motion as bearing upon, the probability of, and furnishing a reason and basis for the purposés alleged at said paragraph 11 to have been formed by the defendants. At least I do not regard it so plainly established that the allegations in question set forth facts which will be immaterial in an action of this character where the proofs are apt to take a wide range, that they should be stricken out upon this preliminary motion.

The motion is, therefore, denied, with $10 costs to plaintiff, to abide the event.

Motion denied, with $10 costs to plaintiff, to abide event.  