Peters v. Huppert — 144 N.Y.S. 1068

Majority

p. 1068

PETERS v. HUPPERT et al.

(Supreme Court, Appellate Division, First Department.

December 31, 1913.)

Headnote

Pleading (§ 367^[1] )—Complaint—Motion to Make Mobe Definite and Certain.

A complaint, in an action for labor done and materials furnished in the construction of a building which fails to state when the work was begun or finished, or when the amount became due, or when partial payments were made, or when a demand for payment was made, is indefinite and uncertain, and defendant may, on motion, compel plaintiff to make the complaint more definite and certain by showing the time when the services were rendered and materials furnished.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. § 367.*]

Appeal from Special Term, New York County.

Action by Louis W. Peters against Isaac Huppert and others. From an order denying a motion to require plaintiff to make the complaint more definite and certain, defendants appeal.

Reversed and motion granted.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, JJ._

p. 1069

Katz & Sommerich, of New York City (George Trosk, of New York City, of counsel), for appellants.

Joseph Gans, of New York City, for respondent.

The complaint alleges that during all the times herein mentioned Henry J. Hoerner and Henry E. Hoerner were co-partners in business, under the firm name and style of H. J. Hoerner & Son; that during all the times herein mentioned the defendants were copartners engaged in the erection and construction of certain buildings; that thereafter, and while the defendants were engaged as co-partners in the erection and construction of said buildings, the said firm of H. J. Hoerner & Son, at the special instance and request of the defendants, performed certain work, labor, and services, and furnished certain materials, and that there is a balance due, and that thereafter and before the commencement of this action said H. J. Hoerner & Son assigned the foregoing claim and cause of action to the plaintiff.

No dates whatever are stated in the complaint as to when the construction work was commenced or finished, or when the amount became due, or when the partial payments were made, or when the demand was made. This motion was for an order that the complaint be made definite and certain by showing the time when the alleged services were rendered and the materials furnished. Without such allegations the defendant is deprived of the information as to whether he has or has not a defense under the statute of limitations.

The order appealed from should be reversed, with $10 costs and disbursements to the appellant, and the motion granted, with $10 costs.