Opinion
January 20, 1911.
John E. Donnelly, for the appellants.
M. De. Witt, for the respondent.
The action is for libel. It is not contended by the plaintiff that the allegations sought to be stricken out are necessary to a statement of the plaintiff's cause of action. The most that is claimed is that "the facts alleged may be or become relevant." Ultimate, not evidentiary facts are to be pleaded. Possibly, the plaintiff may be permitted to prove on the trial the truth of the averments sought to be stricken out, although it may be difficult now to understand how such proof can become relevant, but such possibility does not justify the retention of redundant matter in the complaint. If said facts ever can become relevant they can be proved without being specifically averred in the complaint, and the defendant should not be compelled to plead to evidence. ( Schroeder v. Post, 3 App. Div. 411; Hamilton v. Hamilton, 124 id. 619; Cleminshaw v. Coon, 136 id. 160.)
The orders should be reversed, with ten dollars costs and disbursements, and the motions granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motions granted, with ten dollars costs.