Reubens v. Ludgate Hill Steamship Co. — 21 Abb. N. Cas. 464

Majority

p. 464

REUBENS v. LUDGATE HILL STEAMSHIP CO.

N. Y. Supreme Court, First Department, General Term ;

May, 1888.

Headnote

Pleading; complaint; definiteness.] A complaint in an action against a common carrier of goods for negligence, which alleges that “ the defendant so negligently and carelessly misbehaved itself in transporting said fur that the same was damaged,” etc., is indefinite and uncertain; and a motion to make it more definite and certain will be granted.*

* This decision must be deemed a warning to pleaders to state the-facts relied on as constituting negligence with some detail if practicable safely to do so. Compare note in 20 Abb. N. C. 236 , and group-of cases there reported.

Code Civ. Pro. § 540, provides: “ Where one or more denials or allegations contained in a pleading are so indefinite or uncertain that

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the precise meaning or application thereof is not apparent, the court may require the pleading to be made more definite and certain by/ ■ amendment

Appeal from an order of the special term denying a motion to make a complaint more definite and certain.

Morris Reubens and Bernhard Reubens sued the Ludgate Hill Steamship Company (Limited), a common carrier of goods, to recover damages for negligence in transporting fur in one of its vessels.

The complaint after alleging, 1. that defendant was a. foreign corporation: 2. the copartnership of the plaintiffs,, then proceeded as follows :

Third. That on or about June 22, 1887, the defendant undertook to transport to New York, for hire by one of its vessels, called the “Ludgate Hill,” ninety cases of fur, the property of the plaintiffs, and to deliver the same safely and in good order to the plaintiffs at said city of New York, and that plaintiffs paid the defendant for such freight $178.77.

Fourth. That the defendant so negligently and carelessly misbehaved itself in transporting said fur that the same was damaged, and plaintiff, by reason thereof, sustained damage in the sum of $408.51.

Judgment was demanded for $408.51, with interest and costs.

The defendant moved for an order requiring the plaintiff to make the complaint more definite and certain by specifying and pointing out when, where, how, under what circumstances, and in what way, manner and particulars the alleged damage to the plaintiffs’ goods was incurred, and in'

what the said damage consisted, and in what the alleged negligence and misbehavior of the defendant referred to in the fourth article of the complaint consisted.

The motion came on for a hearing before Hon. Morgan

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J. O’Bbien", at special term, and was denied. The court, in denying the motion, rendered the following opinion:

“ This motion must be denied for the reason that it is well established that negligence may be charged in general terms, and while under the practice in some States, if a more definite statement of facts is desired, a motion to the court to make the complaint more specific, is proper, under our practice, it is only where the precise nature of the charge is not apparent that such an application is proper to make the complaint more definite and certain. But where the particulars or circumstances of time or place, or, as in this case where defendant desires to have specified where, how, and under what circumstances, or the particulars of the alleged damage, the proper practice is to demand a bill of particulars, and on that being refused, to make a motion to obtain it (Tilton v. Beecher, 59 N. Y. 176 , and pp. 183 and 184).”

From the order denying the motion the defendant appealed to the General Term.

J. A. Shoudy ( Wing, Shoudy & Putnam, attorneys), for the appellant.

Otto Horwitz (Horwitz & Hershfield, attorneys), for the respondents.

This is an action for relief. The defendants are alleged to be common carriers for hire between London, in England, and this city. The allegation is that on . June 22, 1887, the defendant undertook to transport to Hew York for hire, by its vessel, called the “Ludgate Hill,” ninety cases of furs, the property of the plaintiffs, and to deliver the same safely and in good order to the plaintiffs at -,the city of Hew York, for which service the defendant was ]paid, and then that “ the defendant so negligently and carelessly misbehaved itself in transporting the fur that the 1

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plaintiff, by reason thereof, sustained damage in the amount stated.”

The defendant insists that this is a very indefinite and uncertain statement of the cause of action, and it seems to be so. It is a natural logical sequence that if defendant carelessly and negligently misbehaved itself it behaved itself, and, it must be assumed, well behaved itself.

This must be the result. This view, which is not intended to be hypercritical, is only given for the purpose of demonstrating the uncertain and indefinite allegation of the cause of injury.

It is not necessary to consider the authorities upon a motion of this character, which create, when put in juxtaposition some confusion, involving to some extent, rules applicable to bills of particulars, for the reason if' none existed, that the Code requires by section 481 a plain and concise statement of facts, constituting each cause of action, without unnecessary repetition. And the court of appeals in Olcott v. Carroll, 39 N. Y. 436 , said in reference to the old Code, the provisions in which are similar to those contained in the Code of Civil Procedure: “"When the allegations in a pleading are so indefinite and uncertain, that the express nature of the charge is not apparent, the court may require the pleading to be made definite and certain by amendment.” Here the plaintiff’s right of action depends on the alleged negligence of the defendant, and giving the broadest and most liberal interpretation to the allegations in the complaint on that subject, there is no suggestion of any fact showing the character of the negligence, whether by improper stowage, or careless handling, or negligent exposure, or of any one of the numerous acts, omissions, and circumstances by which negligence would be made apparent. The statement is, that the goods were so shipped and so negligently transported as to be damaged. This is neither a plain nor concise statement of facts, and the precise nature of the charge is not apparent.

Whether the defendant was guilty of negligence or

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carelessness is a conclusion of law, dependent upon facts which must be proved. There should be at least some general statement of the cause of the damage, beyond the mere-statement of neglect and carelessness.' Some confusion has crept into the consideration of this question, by'the supposed effect upon it of the case of Tilton v. Beecher, 59 N. Y. 176 . The learned justice in writing the opinion in that case, referring to section 160 of the old Code, the provisions of which were similar to those of section 546 of our present Code, said: “ It will be observed that it is only where the precise nature of the charge is not apparent that an application will be made under this section. It enables a party to obtain a definite statement in the pleadings of the nature of the charge intended to be made against him, but not of the particulars or circumstances of the time and place. For that purpose, a different proceeding was pointed out, and from that there was no uncertainty and indefiniteness in respect to the nature of the charge made - against the defendant.”

Indeed an examination of that case shows that the charge made, was quite definite and certain. That case,, and cases kindred to it, establish the proposition that in an action of or for relief, if the charge made be definite and certain, an application for a bill of particulars may be granted. But it in nowise limits, controls or affects the-statutory right secured by the provisions of the Code, to-have a complaint made so definite and certain that the-nature of the charge shall be stated.

The object is to advise the defendant of the claim with such definiteness as to enable him to prepare his defense. This would be required in all other class of cases and should be here. For these reasons, the order appealed from is reversed, and the motion granted with costs.

Daniels, J., concurred.

Baetlett, J., concurred in the result.

Order reversed.

Cases cited

Tilton v. Beecher 59 N. Y. 176 N.Y. 1874-12-07 p. 466, p. 468
Olcott v. Carroll 39 N. Y. 436 N.Y. p. 467