Thomas E. Powers, Respondent, v. Henry Ridder, Appellant; Thomas E. Powers, Respondent, v. Catholic News Publishing Company, Appellant

Thomas E. Powers, Respondent, v. Henry Ridder, Appellant. Thomas E. Powers, Respondent, v. Catholic News Publishing Company, Appellant. First Department, January 20, 1911. Pleading—redundant allegations stricken out — evidentiary facts. A pleading should set out ultimate, not evidentiary, facts. Redundant matter will be stricken from a complaint, even though proof thereof might become relevant at trial. Appeals" by the respective defendants, Henry Bidder and the Catholic H ews Publishing Company, the appeal in each case being from an order of the.Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1910, denying in each case the defendant’s motion to strike certain allegations from the amended complaint as irrelevant and redundant. John E. Donnelly, for the appellants. M. De Witt, for the respondent. [MAJORITY — Miller, J".:] Miller, J".: The action is for libeh 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, arid 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.