Cooper v. Fiske — 44 A.D. 531

Majority

p. 531

Henry H. Cooper, Respondent, v. Robert T. P. Fiske and Stewart Brown, Appellants.

Headnote

Pleadings—when ordered to be made more definite—grounds of discharge of an employee to be stated — remedy in case it is not done.

Where the answer, interposed in an action to recover damages for the discharge-of the plaintiff from the service of the defendants without just cause, alleges. < that the defendants discharged the plaintiff for good cause, as thereinafter specifically set forth, “and others;” that the plaintiff failed and refused to devote his services entirely to the defendants, and for that reason, “ as well as; others,” the defendants discharged him; that .the plaintiff collected moneys; due to the, defendants without their authority, and appropriated the same to his own use without their knowledge or consent and against their express prohibition, and “ for this cause, as well as others,” the defendants discharged the . plaintiff from their employment; and, finally, that the plaintiff was discharged for the same foregoing reasons, “and for'other good and sufficient reasons,” well known to him, an order may properly be made requiring the answer to be amended so as to show what were the causes and reasons for the plaintiff’s discharge, other than those particularly specified in the answer.

Where the removal from the answer of the objectionable clauses would still leave a defense upon which the defendants were entitled to go to the jury, the order should not direct that if the defendants should fail to comply therewith the answer should be stricken out and the plaintiff have the judgment demanded in the complaint; but the relief in such case should be limited to-striking the objectionable allegations from the answer.

Appeal by the defendants, Robert T. P. Fiske and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 8th day of June, 1899, requiring them to make; their answer more definite and certain.

Emil Schneeloch, for the appellants.

E. H. P. Squire, for the respondent.

The complaint is hot printed in the appeal book; but we "infer from the contents of the answer that the action is brought to recover damages for the breach of a contract of employment in consequence of the discharge of the plaintiff from the service of the defendants, ■without any just cause.

p. 532

• The answer* among other things, alleges that the defendants, discharged the plaintiff for good cause as thereinafter specifically set forth “ and others; ” that the plaintiff failed and refused to devote his sendees entirely to the. defendants,-and for that reason, “ as well as others,” the defendants discharged him; that the plaintiff collected moneys due to the defendants without their authority and appropriated the same to his own use without their knowledge or -consent and against their express prohibition, and “ for this cause, as well as others,” the defendants discharged the plaintiff frond their .employment; and, finally, that the.plaintiff was discharged for the .same foregoing reasons “ and for other good and sufficient reasons” well -known to him.

The order appealed from requires the answer to be amended so as to show what were the causes and reasons for the plaintiff’s discharge other than those particularly specified in the pleading, which additional causes or reasons are referred to in the clauses above quoted. The propriety of requiring such amendment is manifest. The allegations which thus imply .or assert the -existence of’ other facts not specified in the answer to justify the action of the defendants in ¡dismissing the plaintiff from their employment are of the most indefinite and uncertain character. They may embrace any imaginable form of misconduct on the part of the servant toward the master, and it is impossible to tell from'the language of the answer whether they relate only to a few-specific acts or involve an inquiry into the behavior of the plaintiff throughout bis entire term of actual service. It is difficult to imagine ¡a case which comes more clearly within the intended operation of section 546 of the Code of-Civil Procedure*

It is argued in behalf of the appellants that if the answer had simply denied that the plaintiff’s discharge was without just cause, the-defendants would have been entitled to prove every just cause they could without pleading any more specifically ; and hence that the answer being sufficiently definite without the statement of any specific-Causes for discharge, it should not be regarded as objectionably indefinite because although specifying some causes it omitted to specify all." In reference to this point it. may be observed -that ■ -the defendants have not seen fit to content themselves With such a denial, and even if. they had it would be impossible’ for us to, say

p. 533

just what would be its effect, in the absence of the complaint from the slipshod record before us. '

While the order under review is right in the main, it- goes too far where it directs that in default of the prescribed amendments the answer shall be stricken out and the plaintiff have the judgment demanded in the complaint. The removal of all the clauses which are objectionable for indefiniteness and uncertainty would still leave a defense in the case upon which the defendants are entitled to go to trial. The proper direction under such circumstances is that the objectionable allegations shall be stricken from the answer, unless the order to make them more definite and certain is complied with. (Hughes v. Chicago, etc., Ry. Co., 45 N. Y. Super. Ct. 114 .) The order appealed from will be modified in this respect, and as thus modified affirmed, without costs of this appeal to either party.

All concurred.

Order modified in accordance with opinion of Bartlett, J.

Cases cited

Hughes v. Chicago, Milwaukee & St. Paul Railway Co. 45 N. Y. Super. Ct. 114 N.Y. Super. Ct. 1879-03-14 p. 533