Seasongood v. Fleming — 26 N.Y.S. 831

Majority

p. 831

SEASONGOOD et al. v. FLEMING.

(Supreme Court, General Term, First Department.

December 15, 1893.)

Headnote

Pleading—Motion to Make More Definite and Certain.

Where the title of an action indicates that it was brought against defendant individually, but the averments of the complaint seem to support an action against defendant as treasurer of a territory, a motion to make the complaint more definite will be granted, as the inconsistency thus created might induce confusion and injury if plaintiff were not required to make any election until the trial.

Appeal from special term, New York county.

Action by A. J. Seasongood and Charles Hayer against James A. Fleming. From an order denying a motion to make the complaint more definite, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

R. F. Clarke, for appellant.

Rush Taggart, for respondents.

The title of the action would' indicate that It was brought to charge the defendant individually, but a reading of the allegations of the complaint would seemingly support a cause of action against either the territory of Arizona, or against the defendant as treasurer of that territory; and, as the inconsistency thus created might produce confusion and injury if the election which the plaintiffs should make were left until the trial, we think it was but right that, instead of leaving the defendant to guess in what capacity he was sued, the plaintiff should be compelled to make the complaint definite by a proper allegation as to whether he intends to charge the defendant personally or officially. The order should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.