
    Harry Hayes Cleaveland, Respondent, v. Edward B. Boynton and Francis H. Sisson, Appellants.
    First Department,
    December 11, 1914.
    Pleading—action for money had and received — complaint — when evidence or irrelevant allegations will be stricken out, even though they include relevant facts.
    Complaint in an action for money had and received, alleging, in substance, that by similar, separate, fraudulent representations and acts of duress, the evidence of which is pleaded at length, the defendants procured from the plaintiff and two others money, and that there remains due and owing to the plaintiff from the defendants a certain sum, examined, and held, that there is no such connection between the transactions alleged as renders the allegations with respect "to the circumstances under which the moneys were obtained from the two others relevant or material as allegations of the plaintiff’s cause of action, and that such allegations should be stricken out, with leave to plaintiff to serve an amended complaint.
    "Where a pleading sets forth at great length evidence and facts irrelevant to the cause of action attempted to be pleaded, so interwoven with relevant facts that the evidence and irrelevant facts are not susceptible of elimination, leaving a connected statement of the facts constituting the cause of action or counterclaim, the court may grant a motion to strike out all those parts of the pleading containing evidence or irrelevant matters, even though they include relevant facts, and leave it to the party to reform the pleading to conform to the requirements of the Code of Civil Procedure.
    
      Appeal by the defendants, Edward B. Boynton and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on or about the 5th day of August, 1914, denying their motion to strike certain allegations from the amended complaint as irrelevant, redundant and scandalous.
    
      Courtland V. Anable, for the appellants.
    
      Sherman Cox, for the respondent.
   Laughlin, J.:

This is an action for money had and received. The plaintiff, in a complaint covering twenty-one pages of the printed record, alleges, in substance, that by similar separate fraudulent representations and acts of duress, the evidence of which is pleaded at length, the defendants procured from the plaintiff and from Theodore M. and Sherman Cox, who are brothers, sums of money which equaled $98,000, as of July 22, 1910, and had used it hr the purchase of 895 shares of the capital stock of the American. Real Estate Company, a Rhode Island corporation; that said sum equaled the cash cost to the defendants of 280 shares of said stock; that on the 31st day of August, 1912, defendants having been unable to compel the plaintiff and the Cox brothers to accept it, sold the 280 shares of stock for $98,000, and accounted to the plaintiff and to the Cox brothers for that amount and for the dividends received on'the stock at the rate of six per cent per annum on the par value of $100 per share in the interim; but that there remained due and. owing to the plaintiff from the defendants — evidently on the theory of the difference between the interest at the rate of six per cent per annum on the $98,000 from said 22d of July, 1910, until the realization of that amount on the sale of the stock, and the dividends received thereon in the meantime, but it is not so expressly stated — $4,743.14, for which, together with interest thereon from the date of the sale of the stock, plaintiff demands judgment.

Most of the allegations sought to be stricken out relate to the transactions between the defendants and the Cox brothers, to which the plaintiff was not a party. The only attempt made in the complaint to connect the.plaintiff with those transactions is an allegation to the effect that the defendants had, in advance of the time they obtained any of the money, conceived a fraudulent scheme to deceive and defraud the Cox brothers and the plaintiff, and that the transactions by which money was obtained from the plaintiff by the defendants were steps in the consummation of such fraudulent scheme.

We are of opinion that there is no such connection between the transactions as renders the allegations with respect to the circumstances under which the moneys were obtained from the Cox brothers relevant or material as allegations of the plaintiffs cause of action. The plaintiff alleges that the defendants obtained $35,000 from the Cox brothers on the 13th of June, 1910, to purchase 350 shares of the capital stock of the Realty Assets Company, a corporation which the defendants had organized, on representations that the Real Estate Company would take it off their hands at cost and interest if it failed within a reasonable time to submit a satisfactory proposition for the sale to them of stock in the Real Estate Company; that defendants later represented that they and one Roberts had made an arrangement for the purchase of 395 shares of the capital stock of the Real Estate Company at $350 per share, payable $28,250 in cash and the balance to be secured by two notes of $60,000 and $50,000 each; that Sherman Cox advanced the cash payment July 19, 1910, to enable the defendants and Roberts to purchase the stock and to obtain a loan thereon with a view to a subsequent purchase thereof by the Cox brothers and on the promise and agreement of the defendants to repay it if a satisfactory offer for the sale of the stock to the Cox brothers was not submitted; that defendants and Roberts consummated the purchase of the stock on the 22d of July, 1910, using the cash advanced by Cox and giving their notes; that defendants, on the same representations that they had previously made to the Cox brother’s, induced the plaintiff and Theodore M. Cox to advance $20,000 and $22,000 respectively on the 6th of September, 1910, to enable defendants to make payments on the note for $60,000 on defendants’ agreement to repay it unless such satisfactory proposition for the sale of the stock to plaintiff and to the Cox brothers should be submitted; that the defendants, in inducing the plaintiff and the Cox brothers thus to part with their money, were guilty of false and fraudulent representations, which are set forth; that the plaintiff and the Cox brothers were obliged, owing to the fact that all payments on account of the purchase of the 395 shares of the Beal Estate Company’s stock were subject to forfeiture in the event that there should be default in any payment to pay the balance of the note for $60,000, which they did on the 21st of September, 1910, the plaintiff contributing $10,293.61; that Theodore M. Cox was also obliged for like reason on the 9th of November, 1910, to allow the defendants and Boberts to use $9,925.50, owing to him by the Beal Estate Company, to enable them to make a final payment on the 395 shares of stock, which they did, and thereupon offered to Sherman Cox, who was the duly authorized agent of his brother and of the plaintiff, 280 shares of the stock in full satisfaction of the claims of the plaintiff and of the Cox brothers, and the offer was rejected, and the total amount claimed by the plaintiff and the Cox brothers,' aggregating $98,611.50, was thereupon demanded of the defendants, who refused to pay it; that the 280 shares of stock were thereupon received by Sherman Cox as security for the amounts claimed by himself, his brother and the plaintiff; that he received the dividends on the stock until the 31st of August, 1912, when it was delivered ;to Boberts by direction of the defendants, and he received $98,000; that after crediting the dividends received on the stock pro rata upon the amount due to the plaintiff and to each of the Cox brothers from the defendants, there remained due on the 31st of August, 1912, to Sherman Cox $42,686.82, to Theodore M. Cox $31,132.11, and to the plaintiff $32,892.01; that Sherman Cox, with the consent of his brother and the plaintiff, retained out of the $98,000 the entire amount of his claim, and the balance was applied pro rata to the claims of his brother and the plaintiff, leaving a balance of $4,143.14, together with interest thereon from the 31st of August, 1912, due and owing from the defendants to the plaintiff.

Many of the allegations with respect to the claims of the Cox brothers, or one of them, are interwoven in the same sentences with allegations relating to plaintiff’s cause of action for money had and received through fraud and duress. It may be that by representations or otherwise the transactions between the defendants and the Cox brothers will become admissible as evidence, but there is no theory upon which plaintiff is justified in pleading the facts constituting causes of action in favor of the Cox brothers as part of his cause of action. There should be no difficulty in pleading the amount claimed to have been obtained from plaintiff by fraud and duress, and the amount admitted to have been received to apply thereon, without pleading the transactions between defendants and the Cox brothers. In the main, the motion is to strike out the allegations with respect to the claims of the Cox brothers. Those allegations cannot be stricken out without taking with them certain allegations that are relevant to the plaintiff’s cause of action; but the rule is that where a pleading sets forth at great length evidence and facts irrelevant to the cause of action attempted to be pleaded, so interwoven with relevant facts that the evidence and irrelevant facts are not susceptible of elimination, leaving a connected statement of the facts constituting the cause of action or counterclaim,—the court may grant a motion to strike out all those parts of the pleading containing evidence or irrelevant matters, even though they include relevant facts, and leave it to the pleader to reform the pleading to conform to the requirements of the Code of Civil Procedure, which provide that a complaint or counterclaim shall contain a plain and concise statement of the facts without unnecessary repetition. (Gutta-Percha Rubber Mfg. Co. v. Holman, 150 App. Div. 678; Colonizers’ Realty Co. v. Shatzkin, No. 1, 129 id. 608; Code Civ. Proc. §§ 481, 500.) That rule is applicable here, and requires that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, but with leave to plaintiff to serve an amended complaint within twenty days on the payment of such costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend on payment of costs.  