
    Joseph Marrone, Resp’t, v. The New York Jockey Club, Appl’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Pleading—Irrelevant and redundant allegations—Striking out.
    Plaintiff contracted to blast and excavate rock at a fixed price per cubic yard for such work as should be done. Defendant paid for all work done and refused to let him proceed. Plaintiff then brought suit for damages for not being allowed to proceed with the work. Feld, that allegations in the complaint that the work done was for defendant’s benefit and accepted by it and paid for according to the contract, which contract was signed by defendant’s superintendent, were irrelevant and redundant, and, on motion, should be stricken out. (Lawrence, J., dissents.)
    Appeal from an order of the special term denying defendant’s motion to strike out a part of the complaint as irrelevant and redundant
    
      Albert B. Oruilcshanh, for appl’t; Edward E. Murphy, forresp’t.
   O’Brien, J.

The complaint alleges that the' parties entered into an agreement, a copy of whicli is annexed, and that the defendant contracted therein under the name of ■ the Westchester Jockey Club:

That all the blasting, excavations and other work done upon the said contract was done upon the land and premises and for the benefit of said defendant, and that said defendant accepted the work already done by the plaintiff under said contract, and that the payments heretofore made to the plaintiff for said work were made by said defendants according to the terms of said contract, and that the James E. Jackson who signed said contract is the architect and superintendent of said defendant.”

The complaint alleges that the plaintiff entered upon the performance of the said contract, and fulfilled all its conditions, until the defendant had broken the said contract by refusing to further allow him to perform the same upon the ground that there was no work tp be done under said contract, and ordered the plaintiff to remove his men and apparatus and tools from those premises, and forbade plaintiff' to do any more blasting, * * * and refused to pay plaintiff for any other and further work than had already been done.”

It is further alleged “ that there remained a large quantity of blasting and rock excavation required to be done under the terms and conditions of the contract.” The contract referred to in this complaint has already been before this general term in this same action, and it was then commented on by the presiding justice as follows:

“ He not only does not show that he has a cause of action against the defendant, but he fails to set out a cause of action against anybody. Not only was the contract in writing under seal, but in the name of a "party other than the defendants, and there is no agreement therein contained that the party contracting with the plaintiff shall allow the plaintiff to do all this work. The plaintiff contracts to take put rock, etc., and the other party contracts to pay him a certain price for what he does take out, and nothing more. It is conceded that the plaintiff has been paid for all work done, and this action is brought to recover damages for not being allowed to do more. As there was no obligation to give the plaintiff more to do, this refusal could not rise to an action for damages sustained by such refusal.”

The language objected to and sought to be stricken out is that above quoted from the complaint. As it stands, it must be answered under oath, and the question therefore presented is whether it is irrelevant and redundant It is apparent that its purpose is, in some way, to support the plea of ratification, upon plaintiff’s theory that the defendant, and not the Westchester Jockey Club, was the real party to the contract If the complaint were that some one else made the contract and defendant afterwards ratified it, this suggestion might have some weight. The theory of plaintiff’s action, however, is that the defendant itself made 'the contract, though under another name. The test, therefore, of its irrelevancy is to be determined by consideratian of what would result upon the cause of action alleged, if all the language complained of were stricken out. So considered, it is clear that the same cause of action would remain, since it is founded, not upon work the defendant did accept, or pay for, or get the benefit of, but upon its refusal to permit the plaintiff to do the work contracted to be done.

The most that can be urged in favor of retaining the language objected to in the complaint would be that it contained a statement of items of evidence in support of the plaintiff’s theory that the contract bau nd the defendant. The answer to this, however, is that facts must be set forth and not evidence of facts. The purpose of pleading is to determine the issues as between the parties, and where, as here, language is introduced in the complaint, which, at best, is but evidence of certain facts, which facts themselves, if true, are not relevant to the issue, it should not be allowed to remain in the pleadings and obscure and cloud the true issue which is to be determined upon the trial between the parties.

As stated by Judge Brady in Isaac v. Velloman, 3 Abb. Pr., 464: “ A party is aggrieved if called upon to answer an irrelevant or redundant statement, and thus to create issues which the rules of pleading do not encourage or. sustain. That imposes upon him a legal obligation, by a system of pleading which does not otherwise exist, and he is aggrieved by it. Every infraction of a legal right is a grievance, however made.”

The principles governing motions of this kind are fully set forth in the case of Smith v. Hilton, 50 Hun, 236; 19 St. Rep., 340, which is an opinion of the general term of this court. It is therein held that it is the duty of the court, upon motion, to strike out such portions of a pleading as are irrelevant

We are of opinion that the motion to strike out the language •objected to should have been granted. And the order is accordingly reversed, with ten dollars costs and disbursements, and motion granted.

Van Brunt, P. J., concurs.

Lawrence, J.

(dissenting.)—We are of the opinion that it cannot be successfully contended that the averment in the complaint which was sought to be stricken out was irrelevant, and that the order made below was, therefore, erroneous.

The complaint, after alleging that the defendant is a domestic corporation,- avers that on the 22d day of September, 1888, the parties to this action entered into a contract in writing, which is annexed, by which the plaintiff was to do certain excavating, and blasting; that the said defendant contracted therein, under the name of the Westchester Jockey Club. It is then averred that all the blasting, excavating and other work done under said contract was done upon the land and premises and for the benefit of said defendant, and that said defendant accepted the work already done under said contract, and that the payments heretofore made to plaintiff for said work were made by said defendant, according to the terms of said contract, and that the Thomas R. Jackson who signed said contract is the architect and superintendent of the said defendant.

The contract referred to is annexed to and made a part of the complaint, is under seal, and is signed Thos. R. Jackson, for the Westchester Jockey Club.

If the paragraph of the complaint sought to be stricken out does not state a cause of action, the proper remedy of the defendant would seem to be by demurrer; but the motion is to strike out the same as irrelevant, and we are not prepared to say upon a motion that it is irrelevant

The opinion of this court delivered in this case, reported in 37 St. Rep., 936, was rendered upon an appeal from an order granting the plaintiff’s motion to compel the defendant to produce a profile and survey for his inspection in order to prepare his complaint. The complaint had not then been drawn and was not before the court, and its sufficiency should be determined upon a demurrer,_ and not upon a motion to strike out portions of it.

It appears that the defendant is in no way aggrieved by the allegations objected to, nor was it embarrassed in its pleading. Code, § 545. see, also, Town of Essex v. N. Y. & Canada Railroad Co., 8 Hun, 361.

The order appealed from must be affirmed, witli costs and disbursements.

Order reversed, with ten dollars costs and disbursements, and motion granted.  