
    Peter B. Bradley and Others, Respondents, v. Charles Sweeny, Appellant. (Action No. 1.)
    First Department,
    June 28, 1907.
    Pleading — irrelevant allegations stricken out.
    When a complaint in equity to compel an accounting by the defendant as managér oí a pool or combination of which the plaintiff was a member seeks to recover in affirmance of the pool contract, allegations that the plaintiff was induced to enter into the contract by the false and fraudulent representations of the defendant are irrelevant and redundant, and will be stricken out.
    Although irrelevant allegations are less prejudicial in a suit in equity than iu one at law, yet they will be stricken out when they are not germane to the issue but present a new issue, or tend to confuse the real issues.
    Appeal by the defendant, Charles Sweeny, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk óf the county of New York on the 28th day of March,.1907, denying his motion to strike out certain allegations of the complaint as irrelevant, redundant and scandalous.
    
      George Welwood Murray, for the appellant.
    
      Robert Russell [James M. Gifford with him on the brief], for the respondents.
   Laughlin, J.:

This is a suit in equity to compel the defendant to account as manager of a “ pool or partnership or combination ” formed by plaintiffs and defendant for the purpose of buying and selling certain corporate stock. The plaintiffs' alleged .that the defendant caused the Federal Mining and Smelting Company to be incorporated under the laws of Delaware, to carry on the business of mining and smelting ores, and became a large stockholder of the corporation and controlled its management; that the plaintiffs became the owners of divers shares of the common and preferred stock of the company; that the defendant proposed to the plaintiffs that they become members of a pool to deal in the capital stock of the com- / pany and that if they would do so he would manage the pool and obtain the best prices obtainable for the stock sold or purchased and sold by the pool, and that the profits would be divided between the members of the pool, in proportion to their respective subscriptions to the capital of the pool;, that lie had obtained for the “ pool or 'partnership or combination ” an option on 8,300 shares of. the common stock and 10,000 shares of the preferred stock .of said company; that ‘ the plaintiffs accepted defendant’s proposal and. plaintiffs and. defendant formed.a “ pool or partnership or. combination ” upon1 the terms aforesaid; that a>capital of. $500,000 was subscribed and paid into the pool, in all the sum of $450,000 by the plaintiffs, the-subscription. of each, however, being an individual subscription'and1 varying.in amounts;, that defendant managed the business-and sold and bought and. sold a large amount of the common, and preferred stock of said company, and falsely and fraudulently represented to the plaintiffs that the stock had been .sold at the then prevailing market -prices of about $65' per share for the common stock and $79 per share for the preferred stock ; that the “pool or partnership pr combination” was dissolved and terminated on or about the 1st day of February, 1905, and the defend.ant-thereupon falsely and fraudulently represented • to the plaintiffs that the total profits of the business were approximately the sum of $18,000, which -lie divided in proportion to tlicir respective interests; that the plaintiffs subsequently learned, and charge the fact to be, that the defendant received about $200 per share for the common stock and $95 per share for the preferred stock, and - that instead of exercising said option- to purchase stock for the benefit of himself and the. plaintiffs, as agreed, purchased and' sold the same for liis. individual benefit. The prayer for relief is that the defendant be compelled to account for all of his acts as. manager of the “pool or partnership or combination ” and “for all the. moneys.' received and disbursed by him- as such manager,” and for all moneys received by him on the sale of the stock over and above the amount for which he'has accounted,, and for the sale of the stock for which he held-an option, which he agreed to exercise in behalf of the plaintiffs and himself.

It will thus be observed that the allegations of the complaint and the prayer for relief show that thé plaintiffs are procéeding in affirm- . anee of the' pool contract and demand an accounting thereunder. There is no allegation' that: the contract has been rescinded, nor is there any allegation Aof or demand for damages other than for the accounting for the unaccounted profits ;due and owing to the plaintiffs by virtue of the pool contract. In addition to the allegations to which attention lias' been drawn, the complaint contains allegations tending to show that the plaintiffs were induced to. enter into the pool contract by.false and fraudulent representations made to them by the defendant, Upon which they relied^ These are the allegations-which the defendant desires stricken out as irrelevant. They are manifestly irrelevant to the cause of action for an accounting, which is the only relief demanded and plaintiffs would not be ' obliged to prove them. If .they are permitted to remain, defendant will be obliged to admit or deny the same and if he denies them he will be obliged to prepare to meet the evidence that may-be offered by plaintiffs thereunder on the trial. In either event he will be prejudiced. Although the suit is in equity, and, therefore, there is less likelihood that irrelevant allegations will prejúdico a party, and consequently motions of this character are not regarded with the same degree -of favor as if the action were at law, yet, where the allegations are something more than allegations of inducement or evidence, and are not germane to the issue but present a new issue, or tend to confuse the real issue, they will be stricken out even in a suit in equity. (Hilton v. Carr, 40 App. Div. 490, 493; Uggla v. Brokaw, 77 id. 310, 315; Rockwell v. Day, 84 id. 437; Dinkelspiel v. New York Evening Journal Co., 91 id. 96; Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121.) The striking out of these irrelevant allegations will, I think, leave the complaint sufficiently definite, but inasmuch as. some of the allegations, will be disconnected and may not appear in good form, the plaintiff should have leave, if so advised, to serve an amended complaint, making the allegations not stricken out clear and connected. (Park & Sons Co. v. Nat. Druggists' Assn., 30 App. Div. 508; Waltham Mfg. Co. v. Brady, 67 id. 102.)

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, but with leaye to plaintiffs to serve an amended complaint, if so advised.

Ingraham, McLaughlin, Clabke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiffs to serve amended complaint if so advised.  