
    SUPREME COURT.
    Sellar agt. Sage.
    If a complaint, in an action ex contractu, contain allegations of fraud, whether stated succinctly as issuable facts or otherwise, they will be stricken out as irrelevant and redundant.
    
      New-York Special Term,
    
    June, 1856.
    Motion to strike out portions of the complaint as irrelevant and redundant.
    T. Darlington, for motion,
    
    W. W. Niles, opposed.
    
   Clerke, Justice.

The plaintiff had a right to sue the defendant in an action ex contractu, or ex delicto. He has elected the former, as I infer from an examination of the summons, (properly before me as a paper in the action,) taken in-connection with the complaint. If he sued in an action ex delicto, he would have a right to state the issuable facts, showing the fraud, or other wrong; and, if he recovered judgment, he would have a right to issue execution against the person of the defendant, without any application to the court. But, as I deem the action commenced equivalent to the old action for money had and received, and therefore ex contractu, all statements relative to the fraud, even if the issuable facts relating to it were succinctly, set forth, are manifestly irrelevant and redundant.

Motion granted, with liberty to the plaintiff to amend—$10 costs to defendant to abide event.  