
    O’Rourke Engineering Construction Company, Respondent, v. Goodwin Car Company, Appellant.
    First Department,
    May 19, 1911.
    Pleading — complaint—misrepresentation—redundant and irrelevant allegations.
    In an action to recover, damages for misrepresentations as to the suitability of cars leased by the plaintiff, an allegation that the ears did not comply with representations made by the defendant in that they could not handle all kinds of rock excavation, should be stricken- from the complaint as redundant where the same issue is sufficiently tendered by - preceding parts of the pleading.
    So, too, where the misrepresentation alleged relates solely to the inability of the cars to handle all kinds’.of rock excavation, an allegation that they were unfit for the purposes of general excavation or rock excavation should be struck out as irrelevant to the issue raised.
    Appeal by the defendant, the Goodwin Car Company, 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 oh the 8th day of March, 1911, denying the defendant’s motion to strike from the complaint certain matter claimed to be redundant and irrelevant.
    
      Duncan Edwards, for the appellant.
    
      Franklin Nevius, for the respondent.
   Dowling, J.:

The action is brought to recover damages amounting to $162,966.06 alleged to have been sustained by plaintiff by reason of misrepresentations made to it as to the suitability for its work of defendant’s cars, in reliance upon which it hired sixty-nine thereof for a period of three years. The representa- ■ tions upon which plaintiff relied are set forth in the amended complaint as follows: “Fourth. That prior to and at the time óf the making of said agreement, and with full knowledge of the plaintiff’s work under- the said contract with the said Railroad Company, as an inducement to the plaintiff to enter into said agreement, the defendant then and there stated and represented to the plaintiff through the instrumentality of circulars and photographs published and issued by the said defendant- and under its authority, and by certain verbal and written statements made and sent to the plaintiff, that the said Goodwin cars so to be leased could handle all kinds of rock excavation of any size made by steam shovel or otherwise, and could do the work of the plaintiff of transporting away the excavated material from its contract .with the said Railroad Company aforesaid in the shortest possible time and at the least cost per cublic yard.”

The falsity of these representations is thus alleged: “Eighth. That the said representations made by the defendant which induced .the making of the original leases with the-defendant on or about the 25th day of August, 1903, and the re-executed leases with the various trustees and this defendant as herein-before mentioned were false and untrue, and known by the defendant to be false and untrue in that the said Goodwin Dumping Cars could not fulfill or comply with -the statements and representations made by the defendant as aforesaid and could not handle all kinds of rock excavation of any size made by steam shovel or otherwise, and could not" dp the work of the plaintiff of transporting away the excavated material from its contract with the said Railroad Company aforesaid in the shortest possible time and at the least cost- perv cubic yard.” '' ^

Thus far the allegation of the falsity of the representations corresponds with the terms of the latter as pleaded in paragraph “ Fourth; ” but there is then added the matter to which objection is made, and which is sought to be eliminated, which sets forth a further failure of the cars to comply with the representations, “ and in that the said cars were wholly unfit and useless for the purpose of general excavation, and were wholly unfit and useless for the purposes of the excavation either of earth or rock to be done by this plaintiff under its said contract with the said Railroad Company.”

In so far as the last-quoted clauses purport to set forth the unfitness of the cars to handle rock excavation they are 'redundant, for that issue was sufficiently tendered by the earlier part of the paragraph; in so far as they attempt to set up the unfitness of the cars for the purpose of general excavation or earth excavation they are irrelevant to any issue in the action, no such representation being pleaded.

The order must, therefore, be reversed, with ten dollars costs and disbursements to appellant, and the motion granted to the extent of striking from the amended complaint the part last quoted, beginning with the words, and in that the said cars,” and ending with the words, “the said Railroad Company,” with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion, with ten dollars costs. Settle order on notice.  