Citizens' Central National Bank v. Munn — 115 A.D. 471

Majority

p. 471

The Citizens’ Central National Bank of New York, Appellant, v. John P. Munn, Respondent, Impleaded with George E. Fisher, Defendant.

First Department,

November 23, 1906.

Headnote

Pleading — when complaint for money lent is definite and certain — plaintiff not compelled to plead evidence.

When a complaint in an action to recover money lent alleges that the defendants, for the purpose of paying for certain stock, borrowed the amount through the defendant F., which amount they agreed to repay upon demand, etc., it is definite and certain, and the plaintiff should not be required to make it more definite and certain by stating: (1) The nature of the liability of the defendants for the alleged loan; (2) the capacity in which the defendant F. represented the other defendant in binding him, and how the authority was evidenced; (3) whether the lender received a promissory note, and, if so, the parties to and terms thereof.

Such allegations would be immaterial in ah action to recover money lent, being in the nature of evidence of the plaintiff’s cause of action, and evidence should SOfc he pleaded,

p. 472

Appeal by the plaintiff, The Citizens’ Central National Bank of New York, from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of" the . county - of New York on the 26th day of" February, 1906, directing that the plaintiff make its, complaint more definite and. certain. _

John A. Garver, for the appellant.

Gibson Putzel, for the respondent.

The action was brought to recover the sum of $100,000. . The complaint alleges that “on o*r about November .27, 1901, the defendants jointly purchased three hundred shares of the capital stock of the Merchants’ Trust Company of New York, and,- for the purp&se of paying for the same, they borrowed, on that date, from the Central National Bank of the City of New York, through the defendant Fisher, the sum of - One hundred thousand dollars ($100,000), which it was agreed should be repaid upon demand, with interest from the same date; and the said sum so borrowed was applied by the defendants in payment of the purchase price of the said stock.” Upon motion of the defendant Munn the court below has required the plaintiff to make the complaint more definite and certain, first, “ by stating the nature and extent of the interest or " liability which plaintiff claims the defendant Munn had or was liable for in'the alleged loan.”’

The complaint alleges that the defendants borrowed the money. There is nothing indefinite or uncertain in this allegation.. The extent of the interest that the defendant had .in the loan is immaterial if the defendant borrowed the money. It is only when the allegation is so indefinite or uncertain that the precise meaning or application thereof is not apparent that the court is authorized to require the pleading to bé made definite and certain by amendment. (Code Civ. Proc. § 546.) Second, “ By stating in what capacity or relation the plaintiff claims that the-defendant Fisher represented, or was authorized to represent, act for or bind the defendant Munn with respect to the alleged loan, whether as agent, partner, joint venture or. otherwise, and" how this relationship or power was evidenced or

p. 473

authorized, whether by writing or parol, and if by parol, the person or persons who purported to give the same on behalf of the defendant Munn and the person or - persons representing the Citizens’ Central National Bank to whom and the time and place where the same was communicated.” However important this information 'may be for the defendant Munn, it is quite difficult tq .see upon what principle it can be inserted in the complaint. The complaint should not state the evidence by which the plaintiff will seek to. prove its cause of action. To prove' the cause of action alleged there must be evidence that Fisher was authorized to borrow the money for the defendant Munn; but the proof the plaintiff has to sustain this allegation should not be inserted in the complaint. Third, “ By stating whether the Citizens’ Central National Bank accepted and received any promissory note or other writing from said defendants or either of them,.or any other person, at the time of making the alleged loan, and if so, the parties, indorsers, terms and substance thereof; and the manner or grounds on which it is sought to charge the defendant Munn with liability upon the loan evidenced by such instrument, and whether jointly or severally, or jointly and severally.” This would be improper if pleaded. The complaint alleges that these defendants borrowed the money. The only allegation necessary to sustain a cause of action for the repayment of a loan is that defendants borrowed the money. This the complaint alleges, and it is not, therefore, indefinite or uncertain.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

McLaughlin, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.