BADEAU v. NILES

BADEAU v. NILES. N. Y. Supreme Court, First Department ; Special Term and Chambers, June, 1880. Pleading. Evidence by which a cause of action may be established upon the trial should not be pleaded, but only the facts constituting the cause of action. Motion to strike out portions of the complaint. This action was brought by Marie E. Badeau (a cestui que trust), individually, and as executrix and trustee under the will of Nathaniel Niles, deceased, against Nathaniel Niles, as executor and trustee under the said will, Amelia B. Wilbaux (a cestui-que trust), individually, and as executrix and trustee under the said will, and others interested in the will, to remove the said Nathaniel Niles from his trusteeship and to restrain him from further acting as executor. The complaint, which charged the defendant, Nathaniel Niles, with misconduct and mismanagement of the estate, contained extracts from his sworn accounts, and examinations as to them, and also from examinations in another action, and from affidavits, and a list of vouchers, and criticisms upon the whole. The defendant moved to strike out these from the complaint as irrelevant and redundant. Marston Niles, for defendant, Nathaniel Niles, and the motion. Washington JR. Nichols, for plaintiff, opposed. [MAJORITY — Lawrence, J.] Lawrence, J. The motion to strike out the portions of the complaint specified in the notice of motion should, I think, be granted. The allegations objected to relate rather to the evidence by which a cause of action may be established upon the trial, than to a statement of the facts constituting a cause of action. Even under the Code I do not understand that it is proper to plead the evidence by which a cause of action is to be established. In other words, the resultant, not the evidentiary, facts should be pleaded. $10 costs to defendant to abide event.