Merritt agt. Slocum. SUPREME COURT. MERRITT agt. SLOCUM. The 402d section of the Code says: "when a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time." The question is, can any judge at chambers make such an order (prescribing a shorter time), in a case not to be heard before him? Held that he can not. Why? Because the true construction of the section forbids it; It says, 66 the court or judge," in contradistinction to "the court or a judge," as is frequently used where the Code evidently intends to give a particular power to any judge. The court may make the order; and the judge before whom the hearing, out of court, is to be. But if the hearing is to be before the court, no judge out of court can make the order. Albany Special Term, August 1851. The plaintiff having, on the 21st of August 1851, obtained the report of a referee upon certain matters referred to him by a rule of this court, previously made in this cause, on the next day applied to the recorder of Troy, and obtained from him an order requiring the defendant to show cause, at the special term of this court to be held on the 26th of the same month, why the report should not be confirmed and why the plaintiff should not have certain other relief mentioned in the order. The plaintiff's counsel having moved for the relief sought by him, it was objected on the part of the defendant that proper notice of the application had not been served. A. K. HADLEY, for Plaintiff. HARRIS, Justice. The application in this case is one which can only be granted upon notice. Such notice is required by the 402d section of the Code to be served eight days before the time appointed for hearing. But here the plaintiff only obtained the report upon which his application was founded five days before the term at which he wished to make his motion. He therefore obtained from the recorder of Troy the order to show cause, claiming that he had authority under the last clause of the section of Merritt agt. Slocum. the Code already cited, to make an order prescribing a shorter time for giving notice of the application. The objection raised by the defendant's counsel involves the construction of that provision in the Code. It declares that "the court or judge may, by an order to show cause, prescribe a shorter time" than eight days for notice of a motion. It has been supposed that under this provision any judge might, in his discretion, make an order which should, in effect, dispense with eight days notice of a motion. I have myself practiced upon this construction of the statute, and I understand others have done the same. But I am satisfied, upon more careful attention to the terms of the section, that it will not bear this construction. "The court or judge,” not "the court or a judge," may make the order. The court may hear a motion; and, in certain cases, a judge, out of court, may hear a motion. The court may, by its order, prescribe a shorter time for giving notice of a motion to be made before the court, than that prescribed by law. A judge, likewise, when a motion is to be made before himself may prescribe a shorter time But I do not think it was the intention of the legislature that any judge, at chambers, should have the power of prescribing a shorter time than eight days for serving notice of a motion to be made in court, or before another judge. That this is so, will be manifest, I think, by comparing the language of the section with that of other sections conferring power upon a judge at chambers. Thus, the 158th section declares that "the court or a judge thereof," &c., may order a further account, &c. By the 218th section the order of injunction may be made by the court, or by a judge thereof." Under the 225th section a defendant may apply to " a judge of the court" to vacate or modify an injunction. Other instances might be cited, but these are sufficient for my purpose. In all these cases the authority given is conferred upon any judge. The indefinite article is prefixed to the term judge. But in the section under notice the definite article is used. It is "the court or judge," that is, the court or the judge, may make the order, and not the court or a judge. Who then may make the order contemplated by this section? That the court may make it, is not questioned. But what judge may make it, out of court? Not any judge, but the judge. It is the judge Benedict and others agt. Dake. before whom the application to which the order relates, is to be made. If the application is not to be made before a judge, out of court, then no judge, out of court, can make the order to show cause. This, I have no doubt, is the true meaning of this provision of the Code. It follows, that the order to show cause in this case was not effectual to confer upon the plaintiff the right to make this motion without giving eight days notice. The motion must, therefore, be denied for want of sufficient notice, but without costs and without prejudice. SUPREME COURT. BENEDICT AND OTHERS agt. DAKE. An entire complaint can not be stricken out as irrelevant or redundant, on motion. Why? Because if leave was granted to serve a new complaint, it would be giving to the motion the effect of a demurrer. Giving effect to the motion merely, would leave both parties in court without the power of proceeding in the action until special relief should be granted, Nor can a portion of the complaint be stricken out on such a motion, as irrelevant or redundant, where there is no specification of what portion is objectionable. The alleged irrelevant or redundant matter should always be clearly pointed out by the moving party-analagous to the old practice of exceptions for impertinence. It seems, that a complaint containing allegations of fraud, which are substantially the same as are necessary in an indictment for obtaining goods under false pretences, constitute a good cause of action. Albany Special Term, October 1851. Motion to strike out complaint, on the ground" that it states the evidence, and not the facts which constitute the cause of action, and that it is not in ordinary and concise language, without repetition, as required by the 142d section of the Code; and also that the same is irrelevant and redundant. AVERY, HOAG & McKINDLEY, for Plaintiffs. Benedict and others agt. Dake. HARRIS, Justice.-The motion to strike out irrelevant or redundant matter, is a substitute for exceptions for impertinence under the former practice in chancery (Carpenter agt. West, 5 How. Pr. R. 53); Rensselaer and Washington Plank Road Co. agt. Wetsel, 6 id. 68). Was it ever known that an entire pleading was struck out for impertinence? I am not aware that any such practice was ever sanctioned. If the pleading contains a cause of action or a defence, then it is not all impertinent. If it does not, then the objection should be taken by demurrer. It is true, that in Shaw vs. Jayne (4 How. 119), Mr. Justice WELLES did say, that if the motion had been to strike out the whole complaint, it would have been granted. This remark, however, was but a dictum. The case before the learned judge presented an aggravated departure from the mode of pleading prescribed by the Code. The plaintiff in an action for false imprisonment, had with great circumlocution and particularity of detail, set forth in his complaint the facts and circumstances which he proposed to prove, to establish his cause of action. The plaintiff very properly moved to strike out these portions of the complaint. The judge, manifesting a degree of indignation, not very inappro priate, at this abuse of " the reformed practice," not only granted the motion, but added that if it had been asked for, he would have stricken out the whole complaint. Perhaps the learned judge had in view, when he made this statement, the authority conferred upon the court by the latter clause of the 160th section. Suppose this motion were to prevail, in what condition would it leave the parties? It is true, the court might grant the plaintiff leave to serve a new complaint; but if so, it would be giving to the motion to strike out irrelevant matter, the effect of a demurrer Giving the defendant the effect of his motion merely, would leave both parties in court without the power of proceeding in the action until special relief should be granted by the court. Nor can the defendant, upon this motion, have a portion of the complaint stricken out, though it be in fact irrelevant or redundant. As in the case of exceptions for impertinence, so in a motion like this, the party who seeks to have matter expunged. must specify the parts of the pleading which he deems irrelevant or redundant. It is requiring too much to subject the court to Benedict and others agt. Dake. the necessity of examining the entire pleading and selecting such parts as should properly be removed. It is enough for the court. to decide when matter alleged to be irrelevant or redundant, is specifically pointed out, whether it is, in fact, so or not. This is the legitimate office of the motion authorized by the 160th section of the Code (see White vs. Kidd, 4 How. 68). But if this motion could be entertained, I do not think it should be granted. The gravamen of the plaintiff's complaint is fraud. They allege that the defendant by false and fraudulent representations, obtained goods of them, the value of which they seek to recover in this action. The complaint, though not very methodically expressed, is brief, and with the exception of one or two passages, pertinent to the cause of action. The plaintiffs state what were the representations made to them by the defendant, and that, relying upon those representations, they sold him goods upon credit, and then allege that the representations were false and fraudulent. Nothing short of this would have constituted a sufficient complaint for such a cause of action. These are the facts which constitute the cause of action, and not the evidence, as the defendant's counsel seems to suppose. The evidence to establish these facts will be quite a different thing. To allege, in general terms that the defendant had obtained goods by fraudulent representations would no more constitute a sufficient pleading, than it would to allege that the defendant had slandered the plaintiff, without specifying the slanderous words. The allegations in this complaint are substantially the same as in an indictment for obtaining goods by false pretences. I am inclined to think it states a good cause of action. If the defendant shall be advised that it does not, he will be at liberty to present the question by demurrer, or take the objection upon the trial. This motion must be denied with costs. |