Ross v. Willett — 26 Abb. N. Cas. 370

Majority

p. 370

ROSS v. WILLETT.

N. Y. Supreme Court, First Department, Chambers;

February, 1891.

Headnote

Pleading ; making complaint definite.] An order requiring plaintiff to make his complaint more definite and certain by stating the particulars of an agreement as to the purchase and sale of goods on •a joint venture, is not complied with by a statement in the •amended complaint that the agreement did not provide that the .goods should be sold at any particular time, in any particular mode, or by any particular person; and defendant will not be •compelled to receive such complaint. The plaintiff should have ■stated either the terms of the agreement, or that it did not expressly provide for the sale.

Motion to compel defendant to receive an amended complaint.

The action was brought by Frank Ross, as ancillary administrator, etc. against Wallace P. Willett and Nathaniel P. Hamlen to recover defendant’s proportion of the loss sustained on a joint venture in the purchase and sale of a cargo of sugar, which had been paid by plaintiffs intestate.

Wilcox, Adams & Macklin, for plaintiffs.

Theo. F. Sanxay, and John f. Crawford, for defendants.

The order of Mr. Justice Barrett

p. 371

required the plaintiff to make his complaint more definite and certain by stating the particulars of the agreement referred to in paragraph 3 in the first cause of action, showing what were the provisions thereof in respect to the sale of the cargo of sugar. If there was no express provision in the contract as to the sale of the said sugar, the plaintiff can comply with Mr. Justice Barrett’s order by alleging that the contract did not provide in express terms for the sale of the sugar. Such an allegation would be a compliance of the order. By the 4th paragraph of the amended complaint the plaintiff, instead of alleging that the agreement did not ■expressly provide for the sale of the sugar, alleges that it was not provided that said sugar should be sold at any particular time, or in any particular mode or manner, or by any particular person of persons. What the plaintiff must allege is either the terms of the agreement which provided for the sale, or allege that the agreement did not expressly provide for the sale ; ■either of those allegations would be a compliance with that order. The same remark applies to the second cause of action. I do not think, therefore, that the •amended complaint complies with the order of Mr. Justice Barrett, and plaintiff’s motion to compel the defendant to receive the amended complaint as served is denied, with $10 costs to abide the event; the plaintiff to be allowed, however, to serve within twenty days an amended complaint, as indicated in this memorandum, upon payment of $10 costs to the defendant for opposing this motion.