WILLIAM H. PARISH, as Administrator, etc., of EARL PARISH, Deceased, Appellant,
BYRON D. JUCKETT, Respondent.
APPEAL by the plaintiff, William H. Parish, as administrator, etc., from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 20th day of May, 1911, striking out as irrelevant and redundant various portions of the complaint.
Rogers & Sawyer [J. E. Sawyer of counsel], for the appellant.
J. Sanford Potter, for the respondent.
The complaint recites in substance that Earl Parish (who died in January, 1910) in 1907 was the owner of a parcel of land. 'That at said time said Earl Parish was an old man
about the age of eighty years in feeble health and physically and mentally infirm. That the defendant, an acquaintance but not a relative of intestate, well knowing him to be in such condition and knowing that he was susceptible and liable to be easily influenced and deceived and contriving and intending to take advantage of his weakness, infirmities and credulity to get possession of his property induced and procured said Earl Parish to sell his home in the Town of Dresden aforesaid and leave the same, and come to the Town of Whitehall, New York, to live with the defendant,' and that thereafter, and while said Earl Parish was living with the defendant at his home, and under defendant's exclusive control, the defendant, while acting in a fiduciary capacity, by fraud and undue influence, induced and persuaded said Earl Parish to place in defendant's hands the sum of $150, the proceeds from the sale of his house and lot, and that thereafter he converted the same to his own use.
As a second cause of action the complaint alleges: 'Upon information and belief, that after said Earl Parish had lived with the defendant for a time, and after defendant had obtained possession of the proceeds from the sale of his house and lot, the defendant refused to allow said Earl Parish to longer remain with him, and procured said Earl Parish to be committed to the County Alms House of Washington County at Argyle, New York,' and then continues in substance that afterwards one George H. Breese died intestate, leaving an estate of about $5,000; that said Earl Parish was an heir at law of said George H. Breese, and as such entitled to one-half of his estate; that the defendant was informed of this fact, and in order to obtain from him this property procured the release of said Earl Parish from the Washington county almshouse and brought him to Whitehall, N.Y. , to live with him. Then the complaint continues that $2,116.70 was paid to said Earl Parish as his share of the estate of said George H. Breese, and that the defendant, while acting in such fiduciary capacity, by fraud and undue influence, induced and persuaded said Earl Parish to place said sum in his hands, and that he received and retains the same. And after this that the defendant refused to allow any of Parish's relatives to visit him or have any communication
with him, and assumed the absolute and complete control of the said Parish and his property to the exclusion of all his relatives, and he asks a judgment for these two sums of money against the defendant.
The defendant moved at Special Term to strike out many of the allegations of the complaint on the ground that they were irrelevant and redundant. The motion was granted and an order to that effect entered, which also required the plaintiff to re-serve upon the defendant's attorney the said complaint, amended by the omission of the matter stricken out, and that defendant have twenty days to plead thereto. From this order an appeal is taken.
It will be seen that by this drastic order the court, instead of the plaintiff or his attorney, substantially framed the complaint.
The words stricken out were important statements of fact as to the condition of Earl Parish at the time these various matters were alleged to have been done to him, and allegations that the defendant knew of his condition ...