Multer v. Anz , 245 A.D. 892 ( 1935 )

Appeal from an Appeal order of Special Term, Supreme Court, Broome county, striking out certain portions of the complaint, under rules 102 and 103 of the Rules of Civil Practice. The action is brought for the foreclosure of a mortgage and demands, among other things, an adjudication as to the rights of certain parties under and in and to said mortgage. The complaint covers fifteen pages of the printed record and does not comply with the provisions of the Civil Practice Act, which requires that it contain a plain and concise statement of the material facts without unnecessary repetition. (See Merohants National Bank of Plattsburgh v. Prescott & Son, Inc., 223 App. Div. 194; Prescott v. Guibord, 221 id. 438; Gutta-Percha & Rubber Mfg. Co. v. Holman, 150 id. 678.) The order appealed from after striking out certain paragraphs and portions of paragraphs of the complaint, including portions of the demand for judgment, granted plaintiffs “ leave to serve an amended complaint, without prejudice to their right, by proper allegations, to seek a determination of the conflicting claims of title by plaintiffs and the defendants, Mary E. Brown and Richard R. Hinds, to the bond and mortgage in question.” The court does not pass upon the materiality of the portions of the complaint ordered stricken therefrom. The court below properly granted leave to plaintiffs to serve an amended complaint. Order unanimously affirmed, with ten dollars costs and disbursements, with leave to the plaintiffs to serve an amended complaint within ten days after the entry and service of a copy of the order to be entered hereon with notice of entry thereof. Present — Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.