
    The New York Central and Hudson River Railroad Company, Appellant, v. The City of New York and Others, Respondents.
    First Department,
    December 17, 1909.
    Pleading — striking out allegations — facts aiding in construction of municipal ordinances.
    A railroad, suing to restrain the city of New York from carrying into effect a resolution of the board of estimate and apportionment requiring the removal of tracks from certain streets will not be required to strike from its complaint allegations as to conditions existing in 'the city at the time when the plaintiff acquired the right to lay the tracks under certain statutes and municipal ordinances of the city.
    This, because the court will not on motion to strike allegations from the complaint . summarily determine the legal rights of the plaintiff under the statutes and ' ordinances alleged, that being a question to be determined at the trial, and also because the plaintiff would be precluded from proving said facts as an aid in the construction of the ordinances.
    For the same reasons the court will not strike out allegations as to the structures maintained by the defendant in the performance of its business, the valuation thereof, and a statement of the amount of traffic and freight moved; nor will the allegation as to the passage of the several ordinances by the common council be stricken out.
    Scott, J., dissented, with memorandum.
    Appeal by the plaintiff, The Hew York Central and Hudson Eivar Eailroad Company, 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 2oth day of October, 1909, striking out certain portions of the complaint as irrelevant.
    
      Alexander 8. JOyman, for the appellant.
    
      Terence Farley, for the respondents.
   Ingraham, J.:

This action was brought to restrain the defendant, The City of Hew York, from carrying into effect a' resolution adopted by the board of estimate and apportionment on the 28th day of May, 1909, which directed the president of the borough of Manhattan to serve notice on the plaintiff to remove within thirty days from the service of the said notice all the tracks,' turnouts and connecting tracks on the line of the Hudson river from Spuyten Duyvil. creek to near Sixty-eighth street in the city of New York, and requiring the borough president on a failure of the plaintiff to remove said tracks, to remove the same from the streets, and to declare such resolution null and void. The plaintiff is a railroad company running from Buffalo to the city of New York, and claims the right to use these tracks under certain acts of the Legislature and ordinances of the board of aldermen and the consent of the municipal authorities of the city of New York. The complaint is long and sets forth in full the various statutes and ordinances of the city of New York. The defendant moved to strike out mány of the allegations of the complaint upon the ground that they were irrelevant. This complaint contained certain allegations in relation to the location of the business in the city of New York at the time and the inducements ■ offered to the plaintiff to construct its road which the city of New York now seeks to remove. While it is dou-btful whether the condition then existing could affect the right that the plaintiff acquired and the power of the municipal authorities to order the removal of these tracks from the public streets, I do not think these alle- . gations should be stricken out, but that the plaintiff should be allowed to prove the facts so as to be able to make such a claim upon the trial as it is advised. To entitle the plaintiff to prove these facts, they must be alleged in the complaint, and it is only by alleging them and offering evidence to .support them upon the trial that the plaintiff can claim that the facts pleaded should be considered in construing the ordinances giving to it the right to use these tracks in the streets. I hardly think we are authorized on a motion of this kind to pass upon the sufficiency of a claim of the plaintiff as to the construction, to be given to these ordinances and as to wliat, if any, effect should be given to these facts' in the construction of .the permission granted to the plaintiff by the municipal authorities. The court below also struck out certain allegations in relation to the passenger stations in the city of New York, and the allegation as to the freight houses and their capacity in the city, the car capacity of the yard tracks and other tracks and structures maintained by the defendant in the performance of its business, and the valuation at which these various properties are assessed for taxation, with a statement of the amount of traffic and freight- moved by the road to these various stations and freight yards, and I think for the same reason it would be improper to strike these allegations out. While it may be doubtful whether these allegations are at all material and can aid the plaintiff, I think they should be left in. the complaint so as to enable the plaintiff to raise the question as to their effect upon the trial, rather than, to decide them now upon motion. The court also struck out the allegation of the passage of several ordinances of the common council under which the plaintiff claims that it was authorized to construct and maintain these tracks and structures. I do not think the court was justified in striking out these allegations. Whether or not any of these ordinances can benefit the plaintiff is a question which we do not decide, and that question can be settled by the court upon the trial; but the plaintiff is at least entitled to plead these ordinances and claim upon the trial that in connection with other ordinances which are pleaded and which are retained in the complaint the municipal authorities have given unlimited and unrestricted permission to retain these tracks. To have the benefit of these ordinances at the trial, it is necessary that the plaintiff should allege and prove them, and I can see no harm in allowing them to remain in the complaint so that the court on the trial can determine what, if any, effect should be given them. .

I think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

McLaughlin, Clarke • and Houghton, JJ., concurred; Scott, J., dissented.

Scott, J. (dissenting):

In my opinion the matter stricken out had no proper place in the complaint. It is true that much more latitude is allowed to a pleader in an equity suit than in an action at la.w. But even in equity there are certain rules to be observed, and clearly irrelevant matter has no place. The sole question in the case is whether or not the city’s consent to the occupation of its streets by the Hudson River Railroad Company is still operative and available to the present plaintiff. The matter stricken out by the order appealed from is clearly' irrelevant to any issue tendered by the complaint. Some of the allegations might be relevant upon an application for an injunction pendente lite to preserve the -status quo until the determination of tlie action, but can have no bearing ■ upon the right of the plaintiff to a final judgment. The order should, be affirmed.

Order reversed, with ten dollars - costs and disbursements, and motion denied, with ten dollars costs.  