
    Caroline Sayles Chittenden (Formerly Caroline M. Holls), as Sole Executrix, etc., of Frederick W. Holls, Deceased, Respondent, v. The San Domingo Improvement Company of New York, Appellant.
    First Department,
    May 8, 1908.
    Pleading — unnecessary allegations stricken out.
    Where a pleading requiring an answer or reply contains allegations of mere evidence not necessary to a statement of the. cause of action, or counterclaim, or affirmative defense, the opposite party has a right to have the unnecessary allegations stricken out.
    Appeal by the defendant, The San Domingo Improvement Company of Hew York, from an order of- the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of January, 1908, denying the defendant’s motion to strike out part of the complaint as redundant and irrelevant.
    
      Frederick B. Woodruff, for the appellant.
    
      Frederic W. Hinrichs, for the respondent.
   Per Curiam :

The portions of the complaint which the defendant moved to strike out as redundant and irrelevant are mere recitals of evidentiary facts and are not necessary allegations of the cause of action set forth.

The defendant may and jirobably does desire to deny the allegations of employment of plaintiff’s testator and the rendition of services by him. It is aggrieved because it may not be able to deny the evidentiary facts unnecessarily set forth in the complaint.

Where a pleading requiring an answer or a reply contains allegations of mere evidence not necessary to a statement of the cause of action or counterclaim or affirmative defense, the opposite party has the right to have such unnecessary allegations stricken out. (Hamilton v. Hamilton, 124 App. Div. 619; Tradesmen's National Bank v. U. S. Trust Co., 49 id. 362.)

The motion should have been granted. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Ingbaham, Laughlin, Claeke, Houghton and Scott, JJ.

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