Whitner v. Perhacs — 25 Abb. N. Cas. 130

Majority

p. 130

WHITNER v. PERHACS.

N. Y. Supreme Court, First District, Special Term ;

June, 1890.

Headnote

1. Pleading; single cause of action.] A complaint for damages for false representations, inducing plaintiff to purchase stock in a corporation and to render services to it, states but a single cause of action having two items of damage.

2. The same ; making definite and certain.] In such case the plaintiff

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will not be required, on motion, to make more definite and certain the allegations as to the items of damage sustained. The remedy is by motion for a bill of particulars.^[1]

Motion by defendant for and order that plaintiff be required to serve an amended complaint wherein she shall set forth and number her alleged cause of action for deceit in the sale of shares of stock, and shall set forth separately in -another count, and number the same, her statement of the facts constituting her alleged cause of action for breach of contract to employ plaintiff and for work, labor and services performed by plaintiff; also that the complaint be made more definite and certain by stating the particular nature ■■and grounds of special damages alleged to have been sustained by reason of defendant’s misrepresentation.

The action was brought by Mary A. E. Whitner against Emil M. Perhacs. The complaint alleged that plaintiff pur

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chased of defendant certain shares of the stock of a corporation of which defendant was president. That plaintiff was personally unacquainted with the financial condition, of such company, and defendant stated to her that it was. doing a very large and profitable business, that the stock was fully paid for, that the indebtedness was only $3,500, that the machinery was owned by it, that its accounts and bills receivable aggregated $13,000, and that plaintiff could draw $30 a week for services she proposed to render in case she should purchase the stock. That such representations were untrue and were made with intent to. defraud plaintiff and induce her to purchase the stock. The complaint alleged in detail the falsity of the various representations and stated that plaintiff gave all her time to the business for over a year, and was enabled to draw only $350 in all; that plaintiff has. been damaged in the sum of $9,000, etc.

W. G. Wilo, for plaintiff.

F. F. Vanderveer, for defendant.

There is but one cause of action set up in. the complaint, that is an action for damages caused by the fraudulent misrepresentations made by defendant. The fact, that there are two items of damage, one the amount paid by plaintiff for the stock, and one the value of the services, rendered to the corporation, does not make two causes of action. The motion to separately state the causes of action denied. Nor should the plaintiff be required to make the-complaint more definite and certain, as to the items of' the damage alleged to have been sustained by plaintiff. If information is sought upon that ground the proper remedy is by a bill of particulars, and not a motion to make the., complaint more definite and certain. Motion should therefore be denied, with $10 costs.