
    Charles Cleminshaw, Respondent, v. Daniel W. Coon, Appellant, Impleaded with Joseph A. Leggett and Arthur J. Burch, Defendants.
    Third Department,
    December 30, 1909.
    Pleading — evidentiary facts .redundant —effect of conspiracy — when z party aggrieved by irrelevant allegations.
    
      A complaint should contain a plain and concise statement of the facts constituting the cause of action, not the evidence of those facts.
    Where a complaint, after properly stating a cause of action for fraud and conspiracy in inducing the plaintiff to .surrender stock to effect a merger of corporations, goes on to allege evidentiary facts stating the manner in which the defendants profited by the transaction by escaping liability as indorsers for one of the merged corporations', the latter allegations will be stricken out on motion.
    While a party moving to Strike out irrelevant or redundant matter in a pleading must be aggrieved'thereby, he is aggrieved when'required to answer it.
    Appeal, by the defendant, Daniel W. Coon, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 3d day of September, 1909,. denying the said defendant’s motion to strike out certain portions of the -complaint as irrelevant. and redundant..
    It is alleged in the complaint that plaintiff was a stockholder, find bondholder of a corporation known as H. C. Curtis & -Co., which stock and- bonds were worth par, and that -the said corporation was prosperous with assets more than equal to its liabilities and making a profit over and above all expenses; that the defendants with one George A. .Spicer were officers of another corporation known as International Shirt and Collar Company, and excepting the defendant Bnrch were liable by indorsement and otherwise for a large amount of the obligations of that corporation ; that both .of said corporations were engaged in manufacturing shirts, collars and ■ cuffs in Troy, N. Y; that defendants with said Spicer conspired-to defraud the plaintiff, and with that intent formed a third corporation known as Curtis, Leggett & Co.,, and proposed that the other two corporations should transfer all their assets to the new corporation and that the plaintiff and the defendants should exchange their stock in their respective corporations for stock of the new corporation in certain proportions as specified in the complaint; that in furtherance of this scheme defendants falsely and with intent to defraud the plaintiff represented that the assets of said International Shirt and Collar Company were largely in excess of its liabilities, which representations were false and known so to be to the defendants when made; that in furtherancé of said scheme and conspiracy to defraud the plaintiff the "defendants fraudulently and falsely misrepresented the profits of said International Shirt and Collar Company, and caused false arid-fraudulent inventories to be made showing property which did not in fact exist, and falsified the books of the said corporation whereby experts who examined the same in behalf of the plaintiff were misled as to the financial condition of said corporation; that in reliance upon said false representations and in ignorance of the truth concerning the same the plaintiff exchanged his stock in H. C. Curtis & Co. for stock in Curtis, Leggett & Co., to which latter corporation said H. C. Curtis & Co. transferred all its property; that' said stock in Hi C. Curtis & Co. was of great value, whereas the stock in Curtis, Leggett & Co. received in exchange therefor was worthless; that the plaintiff, relying upon the false and fraudulent representations of the defendants, surrendered at their request to said Curtis, Leggett &-Co. the said bonds owned by him and issued by said H. C: Curtis & Co., and in exchange therefor received preferred stock of Curtis, Leggett & Co. which was worthlessthat by reason of the foregoing facts the plaintiff has been damaged in the sum of $138,800, for which sum judgment is demanded.
    At the conclusion of the allegations of the complaint appear, the following allegations which the appellant sought to eliminate by the motion resulting in the order we are now reviewing: “ The defendants, other than the defendant Burch, profited by all said false and fraudulent representations and by said transfers of stock and bonds in this way: One George A. Spicer and the- defendants other than the defendant Burch were personally liable as indorsers upon a large amount of business paper- made by International Shirt & Collar Co., which paper said International Shirt & Collar Co. could not pay as it matured. To escape liability therefrom the defendants entered into said plan and scheme to form the corporation Curtis, Leggett & Co., which because of its coining into possession of H. C. Curtis & Company’s assets. would have and did have the reputation of being a wealthy and prosperous concern. Tliedefend- ' ants induced some of the creditors holding the notes of International Shirt .& Collar Co., indorsed as aforesaid by the defendants, to surrender said notes and to accept in their place notes made by Curtis, Leggett & Co., without any indorsement. " Other indorsed notes of International Shirt & Collar Co. were paid with cash borrowed on unindorsed notes of Curtis, Leggett & Go. - In this way said Spicer, Coon and Leggett escaped liability for their indebtedness as indorsers for International Shirt & Collar Co., which they could not have done except by some such. fraudulent scheme as that set forth herein.” ■ - ■
    
      William H. Hollister, Jr., and' George II. Taylor, Jr., for the appellant.
    
      G. B. Wellington, for the respondent.
   Cochrane, J.:

The matter sought to be stricken from the complaint is claimed to be justifiable as constituting a motive for the alleged fraudulent conspiracy. Whether.or not it would be admissible as evidence on, the trial, it clearly has no place in the pleading. A complaint should contain a plain and concise statement of the facts constituting the cause of action and not the evidence- of those facts. This complaint was complete before the allegations which are the subject . of criticism. ' The insertion of these evidentiary facts in the complaint does not affect the question of their admissibility as evidence at the trial. If admissible as evidence, they do not lose that quality because of an omission to plead them, and good pleading requires that they should not be. thus stated.

. It is quite true that the mere presence of irrelevant or redundant matter in a pleading does not justify a motion to-strike such matter from the pleading-under section 545 of the Code, of Civil Procedure. It must -also appear that the moving party is “ aggrieved' thereby.” The tendency of recent decisions, however, is to the effect that a party is aggrieved within the meaning of said section 545 when such irrelevant or redundant matter appears in a pleading which requires an answer or reply. (Chittenden v. San Domingo Improvement Co., 125 App. Div. 855; Hamilton v. Hamilton, 124 id. 619; Schroeder v. Post, 3 id. 411; Schroeder v. Young, 49 id. 640.) As stated in the case last cited when a plaintiff pleads his evidence the defendant is “ a person aggrieved ” by such statements of evidence when he is required to admit, deny or ignore them in an action at law. It may.be that he cannot deny them and a plaintiff is not at liberty to thus embarrass his adversary or to place him in the dilemma of determining for himself at his peril whether he should deny allegations which are clearly immaterial as matter of pleading or whether he may safely ignore them, and when such is the case the defendant is aggrieved and may require such immaterial allegations to be stricken from the complaint.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with.ten dollars costs.

All concurred.

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