
    (86 App. Div. 437.)
    VOGT v. VOGT et al.
    (Supreme Court, Appellate Division, Second Department
    July 24, 1903.)
    1. Pleading — Motion to Strike.
    A motion to strike a paragraph from a complaint as irrelevant anS redundant will not be granted unless prejudice is shown.
    
      2. Same — Pleading Evidence.
    An allegation in a complaint will not be stricken out on motion, where its only fault is a pleading of evidence.
    Appeal from Special Term.
    Action by Augusta M. Vogt against William Vogt and others. From an order denying a motion to strike certain matters from the complaint, defendant Watson appeals.
    Affirmed.
    Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
    Robert S. Kristeller, for appellant.
    Wilber W. Chambers, for 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, 63 N. Y. Supp. 526; Howard v. Mobile Co. of America, 75 App. Div. 23, 77 N. Y. Supp. 957; Stieffel v. Tolhurst, 55 App. Div. 532, 67 N. Y. Supp. 274, citing Park & Sons’ Co. v. Nat. Druggists’ Ass’n, 30 App. Div. 508, 52 N. Y. Supp. 475. 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, 74 N. Y. Supp. 528, 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 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 $10 costs and disbursements. All concur. 
      
       2. See Pleading, vol. 39, Cent. Dig. g 1159.
     