Frank Seaman, Inc. v. Stirn — 137 A.D. 659

Majority

p. 659

Frank Seaman, Incorporated, Respondent, v. Louis A. Stirn and Others, Copartners, Doing Business under the Firm Name and Style of L. & E. Stirn, Appellants.

First Department,

April 8, 1910.

Headnote

Pleading — action on several contracts — complaint should be definite and certain — causes should be separately stated and numbered.

Where a complaint embodies three distinct contracts, the defendant is entitled to have if made more definite and certain so as to show whether the plaintiff relies upon the first contract as modified by the other agreements.

And if the plaintiff, relies upon three separate causes of action, they must be separately stated and numbered.

Appeal by the defendants, Louis A. Stirn and others, copartners, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of January, 1910, denying the defendants’ motion, that the complaint be made definite and certain and that the several causes of action be separately numbered.

Vincent P. JDonihee, for the appellants.

Waldo G. Morse, for the respondent.

- In its present form the complaint herein appears to set forth three different and distinct causes of action : (1) One based upon a contract made on February 18,1908, between I. M. Simpson for and on behalf of the Textile Publishing Company and the defendants; thereafter

p. 660

assigned, .after part performance, to the plaintiff by the Textile Publishing Company at the request of the defendants and with their knowledge and approval, the plaintiff assuming certain indebtedness and performing the balance of that contract. (2) A further independent contract, made as part of the consideration for such assignment, whereby the defendants agreed to pay plaintiff in return for securing the advantages of its business facilities, a further sum of ten'per cent upon the price to be .paid under the contract of February 18, 1908, for certain booklets and other matter. (3) A separate and independent contract, made at some unknown date, whereby the plaintiff furnished and delivered to the defendants, upon their order, certain printed matter and stationery at the agreed, price of $868.09, and whereby .certain advertising was to be done.

It is nowhere alleged that the last two contracts were modifications of the original contract or formed any part thereof, and the complaint furnishes no means by which it' can be determined with certainty hów the amount sued for is arrived at or apportioned between these three contracts. The defendants are entitled to.know whether the plaintiff .is relying upon the original contract, subsequently modified by mutual agreement,, and if such is plaintiff’s contention it should state so unequivocally. If, on the other hand, the plaintiff is suing Upon three separate causes of action^ then the}' must be separately numbered and stated, and it must appear how much is sought to be recovered upon each of them.

The order appealed from must, therefore, be reversed,- with ten dollars costs and disbursements, and the application granted, to the extent.indicated, with ten dollars costs of motion.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and. motion granted to extent stated in opinion, with ten dollars costs. Settle order on notice.