I cannot concur in Mr. Justice Laughlin’s conclusion as to the demurrer to the second cause of action.
The gravamen of that cause of action is the non-payment of the award made by the arbitrator. Mr. Justice Laughlin finds the facts stated insufficient to constitute a cause of action to recover the award, but because the facts stated in the first cause of action are realleged by reference thereto, and we are agreed that those facts were sufficient to state a cause of action for a breach of the contract, he holds the second cause of action good as against the demurrant. In my opinion the facts realleged are merely by way of inducement, and are introductory to, and explanatory of, the material facts alleged to constitute the second cause of action. They are not material or necessary to that cause of action, for if the plaintiff proved all those facts, and failed to prove the provisions in the contract for arbitration and award thereunder, it could not obtain judgment for the award. While they are not material and necessary to the cause of action, they are not irrelevant or redundant and could not be stricken out on motion. In all forms of pleading whether at law, in equity or under the Code, allegations have been allowed of matter of inducement, i. e., a statement of matter which is introductory to, and tends to explain or elucidate the principal subject of the complaint, out of which the cause of action arose.
These allegations being explanatory merely, are not required to be traversed, nor should they be stricken out on motion. (McGarahan v. Sheridan, 106 App. Div. 532, 538; Hale v. Tyler, 104 Fed. Rep. 757, 759.) On demurrer they should be disregarded.
In my opinion the demurrer to the second cause of action should be sustained.
Clarke, P. J., concurs.
Order affirmed, with ten dollars costs and disbursements, with leave to appellant to withdraw demurrer and to answer on payment of said costs and costs of action to date.