Hyperlawhypertext legal database Gould v. McLaughlin 112 N.Y.S. 518

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Gould v. McLaughlin

112 N.Y.S. 518 Court N.Y. Sup. Ct. Decision date 1908-10-12 English

Delivered by GIEGERICH, J.

Contents

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p. 518
GOULD v. McLAUGHLIN.
(Supreme Court, Special Term, New York County.
October 12, 1908.)

Headnote

Pleading—Amendment—Bill of Particulars.
A complaint alleging that the agent of defendant, while serving a summons for the purpose of effecting that service and being encouraged by defendant, committed the assault complained of, does not leave the precise meaning in doubt, so that Code Civ. Proc. § 546, providing that, when a pleading is so indefinite that its precise meaning is not apparent, it may be required to be made more definite by amendment, does not apply; but defendant’s remedy is by a motion for a bill of particulars.
Action by Kathrine C. Gould against Trank A. McLaughlin. On motion to compel plaintiff to make the amended complaint more definite and certain.
Denied.
. Gifford, Hobbs & Beard, for the motion.
Clarence J. Shearn, opposed.

The amended complaint alleges that the agent of the defendant, while in the course of his employment and while engaged in serving the summons, as a means and for the purpose of effecting that' service, “and being encouraged, aided and abetted by the defendant,” committed the assault for which damages are sought. This motion is brought to compel the plaintiff to make more definite and certain the allegation contained in the words quoted above.

If the defendant is entitled to any- relief, he has mistaken his remédy. Neither the precise meaning nor the application of the words in question is in any way in doubt, which by the statute is made the test of the right to the remedy here sought. Code Civ. Proc. § 546. If the defendant requires and is entitled to more precise or detailed information as to the manner in which the acts charged were accomplished,

p. 519
his relief is through the medium of a bill of particulars. Kavanaugh v. Commonwealth Trust Co., 45 Misc. Rep. 201 , 91 N. Y. Supp. 967 ; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181 , 84 N. Y. Supp. 669 .

Motion denied, with $10 costs.

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