#### John C. L. Hamilton, Respondent, *v.*Adelaide Hamilton and Others, Defendants, Impleaded with William Pierson Hamilton and William Hamilton Harris, as Executors, etc., of Alice Hamilton, Deceased, Appellants.

First Department,

March 6, 1908.

Pleading — striking out redundant allegations — distinction between irrelevant matter in complaint and answer.

Although as a general rule the court will not strike out allegations in the pleading merely because they set forth evidence tending to establish the facts upon which the cause of action is based, they should be stricken out nevertheless if it appear that the opposing party will he injured by being compelled to traverse the same.'

Thus, in an action brought to establish the invalidity of a will on the ground of lack of testamentary capacity, allegations in the complaint which are merely evidence of facts which would entitle the plaintiff to the judgment sought, will he stricken out as irrelevant and redundant because the defendant should not be required either to admit, deny or ignore the same.

There is a distinction between the effect of redundant matter in an answer and its effect in a complaint. Where such matter appears in the answer the plaintiff is not aggrieved as he is not required to reply thereto, but where it appears in the complaint the defendant must answer it and thus is a person aggrieved within the meaning of section 545 of the Code of Civil Procedure.

Appeal by the defendants, William Pierson Hamilton and another, as executors, etc., 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 17th day of January, 1908, denying tli¿ said defendants’ motion to strike out certain portions of the complaint as redundant.

*John G. Milburn,*for the appellants.

*Delos McCiordy,*for the respondent.

McLaughlin, J.:

This action is brought under section 2653a of the Code of Civil Procedure to procure a judgment declaring invalid three codicils to the will of Alice Hamilton, deceased, which had been admitted to probate. The facts set out in the complaint, upon which such judgment is asked, are that the testatrix, at the time of the execution of *620the codicils, was of unsound mind and incompetent to make a will. A motion was made to strike out all of subdivision 3 and a part of subdivision 4 of the complaint upon the ground that the matter there set forth is irrelevant and redundant. The motion was denied and-the appeal is from the order.

If the motion had been granted,-the complaint wonld then plainly and concisely- set forth the facts constituting plaintiff’s cause of action. It'would then allege the execution by the testatrix of the will and the codicils thereto; her lack of testamentary capacity at the time of the execution of the codicils; her death ; probate of the will and codicils ; the issuance of *letters and*the alleged interest of the parties to the action; indeed, every necessary fact which, if established at the trial, would entitle the plaintiff to judgment is set forth. The matter sought to be stricken out adds nothing to these "facts. It is at most but evidence of the facts which wonld entitle the plaintiff to the judgment sought, viz.j that "the testatrix was of unsound mind and lacked testamentary capacity at the time the codicils were executed. .

A complaint should contain a plain and concise statement of facts constituting the cause of- action, not the evidence which will establish such facts. It is not good pleading to set forth the evidence tending to establish the facts upon which the cause of action is predicated, and while it is. true as a general proposition that the court does not strike out allegations in a "pleading for that reason only, nevertheless it does so whenever it is aide-to see that unless they be stricken out the opposing party may be injured thereby. Here, to permit the matter sought to be stricken out to remain in the- complaint might prejudice, the defendants because their answer must either admit, deny or ignore the matter thus pleaded, and unless it be denied, it-stands admitted".

There is a distinction between a motion tó strike out allegations' as irrelevant and redundant in an answer'and one to strike out allegations of the same character in a complaint. In the former case it has been held that the plaintiff is not aggrievéd by permitting such matter to stand, inasmuch as there is no necessity of replying thereto; while in the latter-case the answer must deny the same.. *(Tradesmen's Nat. Bank*v. U. *S. Trust*Co., 49 App. Div. 362.) The necessity of answering such irrelevant and redundant *621matter brings a defendant, when moving to strike out the same, within the meauing'of section 545 of the Code of Civil Procedure as “a person aggrieved thereby.” *(Schroeder*v. Post, 3 App. Div. 411; *Schroeder*v. Young, 49 id. 640.)

*Bradner*v. *Faulkner*(93 N. Y. 515) and *Dinkelspiel v. N. Y. Evening Journal Co.*(91 App. Div. 96), upon which the learned justice at Special Term relied, as appears from his opinion, are distinguishable'from this case for the reason that there the motion was to strike out portions of the answer, and inasmuch as there was no necessity for the moving party to reply to the matter sought to be stricken out, lie was not a person “ aggrieved.”

I am of the opinion that the matter set forth in subdivision 3 and that portion of subdivision 4 as indicated in the notice of motion, is redundant and for that reason the motion to strike out should have been granted.

The order appealed from, therefore, must he reversed, with ten dollars costs and disbursements, and the motion to strike out granted, with ten dollars costs.

Patterson, P. J., Ingraham, Clarice and Scott, JJ., concurred.

Order reversed, witli ten dollars costs and disbursements, and motion granted, with ten dollars costs.