
    Augusta M. Vogt, Respondent, v. William Vogt and Others, Defendants, Impleaded with Harold Watson, Appellant.
    
      Pleading — striking out allegations therefrom — not encouraged — ndt done, where they are averments of evidence — it is discretionary.
    
    Motions to strike out allegations contained in pleadings are not encouraged or granted save on grievance shown; if the only fault of the allegations in question is that they are averments of evidence, the motion will not he granted. The relief rests largely in the discretion of the court.
    Appeal by the defendant, Harold Watson, from an order of the Supreme Court, made at the Kings. County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of Hay, 1903, denying said defendant’s motion to strike out certain matter from the plaintiff’s complaint.
    
      Robert S. Kristeller, for the appellant.
    
      Wilber W. Chambers, for the respondent.
   Jenks, J, :

Such motions are not encouraged or granted save on grievance shown. (Tradesmen’s Nat. Bank v. U. S. Trust Co., 49 App. Div. 362, 366 ; Howard v. Mobile Co. of America, 75 id. 23 ; Stieffel v. Tolhurst, 55 id. 532, citing Park & Sons Co. v. Nat. Druggists’ Assn., 30 id. 508.) The relief is largely in the discretion of the "court. (Howard v. Mobile Co. of America, supra) Van Brunt, P. J., in Stokes v. Star Co, (69 App. Div. 21), very justly says: “ It is often difficult to determine upon pleadings themselves whether or not allegations contained therein will be irrelevant and redundant when the facts are developed upon the trial, as the course of the evidence frequently makes that which at first blush might. seem irrelevant to be pertinent to the peculiar phase which the. case assumes.” Allegations are not stricken out if their only fault is the pleading of evidence. (Tradesmen’s Nat. Bank v. U. S. Trust Co., supra) It may be that the judgment pleaded in the paragraph attacked cannot be competent as an estoppel or as res adjudicata. Suffice it to say that the trial court will pass upon the question if presented^ and we need.not; and, passing upon it, the court will, doubtless, protect the defendants by the rules of evidence. • But we cannot forecast from the pleadings that some of the allegations of said paragraph, if proven, may not be competent, relevant and material on the questions of fraud, deceit and conspiracy. I think that "the learned Special Term, Marean, J., presiding, properly denied the motion.

The order should be affirmed, with ten dollars costs .and disbursements.

. Bartlett, Woodward, Hirsohberg- and Hooker, JJ., concurred

Order affirmed, with ten dollars costs and disbursements.  