#### Williams *et al. v.*Folsom *et al.*

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

1. Pleading—Motion to Strike Odt.

Where it reasonably appears that the allegations in a complaint constitute a full exposition of plaintiffs’ case, giving more details than is necessary, but germane to the subject, they cannot be properly stricken out as irrelevant especially where the action is one in which fraud is alleged, and there is no evidence that the retention of the allegations would embarrass defendant in his defense.

2. Same—Waiver oe Objections.

By answering a complaint defendant'waives his right to move that portions thereof be stricken out as irrelevant, or made more definite.

Appeal from special term, New York county.

Action by Louisa Williams and others against Samuel D. Folsom and others. Defendants appeal from an order denying their motion to have certain portions of amended complaint stricken out. For former litigation, see 3 N. Y. Supp. 681; 5 N. Y. Supp. 211; 7 N. Y. Supp. 568.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*Davenport, Smith & Perkins, tor*appellants. *Carter, Hughes &*Cravath, for respondents.

Brady, J.

This action was brought to recover the sum of *$10,000,*to which the plaintiffs considered themselves entitled by reason of the treacher*896pus conduct of the defendants, who, as their agents, had induced them to sell certain real estate for a sum less than its value in order to resell the same at an advanced price for their own benefit, and which they accomplished by improper representation, and the use of a vendee who was' connected with the fraudulent scheme. The allegations in the complaint designed to make this apparent are in part objected to, and the defendants seek to have them stricken out in the first place, or made in some respects more definite and certain. The allegations as a whole are not, nor is any part of them, irrelevant. They constitute a full exposition of the plaintiffs’ case, giving, perhaps, more details than would be necessary, but nevertheless germane to the subject, and may be items of importance in establishing the'course of action set up. When this reasonably appears they cannot be properly stricken out as irrelevant, more especially if the action be one in which fraud is alleged. Aside from this, the disposition of a motion made for such a purpose is discretionary, and should be granted only where no doubt exists of the irrelevancy charged. This is the rule, although the pertinency of some of the allegations is not directly apparent, but there is a possibility that they may become- so in explanation of or as connected with the history of the subject-matter of the litigation. There is still another rule applicable to such a motion, and that is: there must be some evidence that the retention of the allegations would embarrass the defendants in their defense,—something shown establishing harm or injustice. *Lugar*v. *Byrnes,*15 Civil Proc. R. 72.

There is still another objection to the success of this motion, namely, that the defendants have answered. An answer can have no other effect in reference to such a motion than to waive the right to make it. This must apply whether the complaint be amended or not, if the answer remain. The issues are framed when that pleading is put in and the preliminaries are closed. The allegations are not subject to the charge of indefiniteness. They are definite and certain. There can be no misunderstanding as to what is meant by them, and the evidence to sustain them cannot be called for. It may be said, indeed, that the defendants well know what is charged against them, and are desirous of ascertaining, if they can, the particulars of the proof by which they will be established. Besides, allegations of fraud are not required to be stated with great particularity. The array of facts and circumstances, but not minutely, is sufficient. *Passavant*v. *Cantor,*21 Abb. N. C. 259, 264. The court may in some instances grant on a proper motion therefor a detailed statement, but not on such a motion as was made herein in such a case as this. A general statement, if comprehensive and complete, although it may in the proof involve details, cannot be arraigned as indefinite or uncertain. For these reasons the learned judge in the court below properly denied the motion, and it should be affirmed, with $10 costs, and disbursements of this appeal. All concur.