Harrington v. Stillman — 120 A.D. 659

Majority

p. 659

Julia E. Harrington, Appellant, v. William O. Stillman, Respondent.

Third Department,

June 25, 1907.

Headnote

Pleading—negligence in operating automobile—motion to make complaint more definite and certain.

An order requiring a pleading to be made more definite and certain should not require the disclosure of matters Avhich are mo.re properly the subject of a bill of particulars.

Thus, in an action founded upon the negligence of the defendant in operating an automobile, allegations in the complaint that the defendant operated his automobile negligently and carelessly by not giving proper and adequate signals, and by running at a dangerous rate of speed, .should not be required to be made more definite and certain; further information as to these allegations, if the defendant be entitled thereto, should be procured by motion for a bill of particulars.

On the contrary, allegations that the defendant was negligent in not observing and obeying rules and regulations promulgated by the authorities having control of the highway and its use should be required to be made more definite and certain. The plaintiff should be required to state the rules and regulations referred to, and the authorities by whom they were made and promulgated.

When, in addition to allegations which are indefinite and uncertain, the com- , plaint Contains other matters constituting a good cause of action, the order should not provide that on the failure of the plaintiff to remedy the defect the entire complaint is to be stricken out; striking out' the indefinite allegations would be sufficient.

p. 660

Appeal by the plaintiff, Julia E, Harrington, from so much of an order of the' Supreme Court, made at the Eensselaer Special Term and entered in the office of the clerk of the county of Washington on the 6th day of March, 1907,. as requires that the .complaint be made more definite and certain.

The complaint states a cause of action for negligence .against the defendant in so operating his automobile as to cause' a horse behind which plaintiff was riding to. run away and injure plaintiff. The complaint contains the .following allegations of negligence among others; that the defendant did “ operate said automobile negligently and carelessly by not giving the proper signals and by not giving adequate signals and by running then and there at a dangerous rate of speed, * * * and by not then and there observing and obeying rules and regulátions theretofore properly and duly made and promulgated and then- and there in force by the proper authorities having control of said highway and its use;”

The order appealed from requires the complaint to. ho' made definite and certain by stating what were the proper signals, and the adequate signals which defendant should have given and failed to give; the rate of speed at which he was running; and the rules Bnd regulations referred to, and the proper authorities by whom they were promulgated, and when, how and where said rules and regulations were properly and duly made and promulgated. The order also strikes out the complaint in default of compliance with its requirements.

G. B. Wellington [Herbert F. Roy of counsel], for the appellant.

Hun & Parker [Lewis R. Parker of counsel], for the respondent.

In Dumar v. Witherbee, Sherman & Company ( 88 App. Div. 181 ) this court, speaking through Mr. Justice Chase, said: “It is better that the distinction between an order requiring a pleading to be made definite and certain and an order directing a bill of particulars should not be confused. When all that a party to an action really wants is a more'particular statement, of his opponent’s claim for the purpose of narrowing the issues at the trial, or to prevent

p. 661

surprise, lie should be required to make an application for a bill of particulars, and not be allowed tó obtain an amended pleading' on the theory' that the precise meaning or application of the allegation is not apparent.”

It is1 sometimes difficult to distinguish' between the remedy by bill of particulars and the remedy to make a pleading definite and certain. Where the distinction clearly exists, however, it should be observed even though the result of either application would be the same. (Rouget v. Haight, 57 Hun, 119 ; Jackman v. Lord, 56 id. 192 .) One reason for' observing the distinction is that a motion for a bill of particulars may be opposed with affidavits, whereas a motion to make a pleading definite and certain .must be determined on the pleading alone. Another reason is that the insertion in a pleáding of unnecessary details violates the rule of brevity, clearness and conciseness which1 is not only commendable, but is also commanded. (Code Civ. Proc. §§ 481, 500.)

Tiie order herein confuses tiie proper distinction between the two motions. The allegations of the complaint as to the signals which the defendant failed to give and the rate of speed at which he was proceeding are not such as to he the subject of a motion to be made definite and certain. Hot every indefinite or uncertain allegation in a pleading may be made the subject of such a motion, but only such an allegation as is so indefinite or uncertain “ that the precise meaning or application thereof is not apparent.” (Code Civ. Proc. § 546.) Ho one can fail to understand the “ meaning” of the allegations $.s to the signals and the rate of speed; and the “ application ” of those allegations to the cause of action here alleged is that they are in and of themselves evidence of negligence. If the defendant is entitled to the details of the facts thus alleged lie should ask for a bill of’ particulars.

I think, however, that the allegation in the complaint as to the rules and regulations which defendant is claimed to have disregarded is not stated with sufficient definiteness and certainty. It is not apparent how such allegation demonstrates negligence; and hence it has no “ application ” to the cause of actiou alleged unless it further appears what such rules and regulations were and by what authorities they were promulgated. To .that extent such allegations should be made definite and certain.

p. 662

The order under review is much too drastic in directing that for a failure to comply with its provisions the- entire complaint' be stricken out.. If the allegations required to be made definite and certain were stricken from the complaint sufficient would remain to constitute a good cause of action.

The order should, therefore, be modified so as to require .that the complaint state specifically the rules and regulations therein referred to and the authorities by whom they were made and promulgated, and on failure- to. comply with such requirement the -allegation as to such rules and regulations should he -stricken from the complaint, and as so modified said order should he affirmed, without costs. " ''

All concurred.

Order modified in accordance with opinion, and as so modified affirmed, without costs.