Loewenthal v. Philadelphia Rubber Works — 18 N.Y.S. 523

Majority

p. 523

Loewenthal v. Philadelphia Rubber Works.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

Bill of Particulars—Motion to Make Definite and Certain.

Where the defense set up in an answer is sufficient, so far as its general allegations are concerned, a motion will not lie to make the answer more definite and certain by alleging the specific facts to be proved under it, but a bill of particulars is the proper remedy. Jackman v. Lord, (Sup.) 9 HT. T. Supp. 200, followed.

Appeal from special term, Hew York county.

Action by Rudolph A. Loewenthal against the Philadelphia Rubber Works to recover damages for breach of contract. From an order denying the motion to make the answer more definite and certain the plaintiff appeals.

Affirmed.

Argued before Van Brunt, P. J., and O’Brien and Ingraham, JJ.

George O. Coffin, for appellant. Noah Davis and J. Henry Work, (Henry W. Jessup, of counsel,) for respondent.

It seems to us that the rule laid down in the case of Jackman v. Lord, (Sup.) 9 N. Y. Supp. 200 , disposes of this appeal. There is no question but what the defense set up in the answer, as far as its general allegations are concerned, is sufficient; and therefore it is not the province of the court, upon a motion to make the pleading more definite and certain, to compel the allegation of the specific facts which led to the general conclusions alleged in the pleadings. This office is served by a bill of particulars, by which a party in a proper case is apprised of the particular facts which his opponent expects to prove, and, being so apprised, cannot be surprised at the trial. The order should be affirmed, with $10 costs and disbursements. All concur.