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Sloman v. Schmidt

8 Abb. Pr. 5 Court N.Y.C.P. English

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SLOMAN a. SCHMIDT.
New York Common Pleas ; General Term,
December, 1858.

Headnote

Pleading.—Indeeiniteness and Uncertainty.
A complaint for money received, which states that at a specified time the defendants received as agents of the plaintiff, from a specified party, certain sums of money, amounting in the aggregate to a specified sum, and states a demand and refusal to pay, is not obnoxious to motion to make more definite and certain. The defendant, if be wishes more, must seek a bill of particulars.
Motion that complaint be made more definite and certain.
• The action was for moneys received. The complaint stated at length that the plaintiff was at a former time owner of certain vessels employed by him in the transatlantic passenger traffic, and that he was compelled by the authorities of the State of New York to pay to them, as “ hospital moneys,” certain fees, which were subsequently by law declared to have been illegally collected, and directed to be repaid. “ That, thereupon, to wit, on,” &c., “ the defendants, acting as the agents of the plaintiff, and on his account, demanded, collected, and received back from” the authorities “ a large portion of the said hospital money so paid by the plaintiff, which said portion so paid to the defendants amounted, including interest likewise received by the defendants as aforesaid, as the plaintiff is informed and believes, to the sum of $1650.25. That the money so received by the defendants then belonged, and still belongs to the plaintiff, and that though the same has been often demanded of the defendants by the plaintiff, yet they have not paid the same, nor any part thereof.”
The defendant moved that the plaintiff be ordered “ to make his complaint more definite and certain, so that the precise nature of the charge therein may be apparent thereby; and in particular to specify in such complaint the names and number of the vessels employed by him the said plaintiff, as in the several counts of the said complaint alleged, and the number
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and dates of the voyages made by each of such vessels respectively, and the number of passengers carried by each of such vessels on each of such voyages, in respect of whom the plaintiff’s complaint arises.”
The motion was denied at special term, and the defendants appealed.
J. T. Williams, for the appellants.
Seth Webb, Jr., for the respondent.
I. The order is not appealable. The amendment did not involve the merits of the action, or any part thereof or affect a substantial right. (Code, § 349, subdiv. 3.) Orders as to the form of pleadings are not appealable. (Bedell a. Stickles, 3 Code R., 105.)
II. The action is one merely for money had and received by the defendants to the use of the plaintiff, and as his agents ; and in such case the complaint need state no more than that the defendants received the money to the plaintiff’s use, and that it has not been paid to plaintiff. (Allen a. Patterson, 3 Seld., 326 ; Adams a. Holley, 12 How. Pr. R., 326 ; Lienan a. Lincoln, 2 Duer, 670 .)
III. The matter sought by the motion is matter of evidence. The motion is a mere, fishing attempt to see whether the plaintiff has every point of testimony necessary to make out his case.
TV. The defendants can answer the complaint without the information they are seeking. They can deny knowledge or information sufficient to form a belief.

The complaint contains a statement of the facts upon which the claim alleged is made. The statement of the facts, and the facts themselves, are not indefinite or uncertain. In Lienan a. Lincoln ( 2 Duer, 670 ), the complaint did not allege facts sufficient to constitute a cause of action. The defendant was charged with the receipt of moneys to the plaintiff’s use, without stating any additional fact showing that the plaintiff was entitled to the amount so received, when the action was commenced. In this case the defendants

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are charged with having received sums of money as the agents of the plaintiffs, which belonged, and still belongs to the plaintiffs, and which the defendants, though often requested so to do, refuse to pay. The items can be obtained by bill of particulars. The statement sought to be made a part of the complaint would be in effect a recital of the facts by which the claim must be established, or at least the embodiment of a bill of particulars in the complaint. The complaint is sufficient in form. (Allen a. Patterson, 3 Seld., 476 ; Adams a. Holley, 12 How. Pr. R., 326.)

And the order appealed from should be affirmed, with $10 costs.

Footnotes

  1. * Present, Daly, F. J., Brady and Hilton, JJ.