West v. O'Neill — 35 N.Y.S. 714

Majority

p. 714

(14 Misc. Rep. 235.)

WEST v. O’NEILL.

(City Court of New York, General Term.

October 29, 1895.)

Headnote

Pleading—Motion to Make Definite and Certain.

Where the answer in an action for rent alleges that defendant, for a valuable consideration, surrendered, ■ and plaintiff accepted, the demised premises, before the rent sued for accrued, a motion that the answer he made more definite and certain by specifying the valuable consideration referred to will be denied, where plaintiff’s affidavit states that he never accepted the surrender.

Appeal from special term.

Action by James O. West against Patrick O’Neill for rent. From an order denying a motion to make answer more definite and certain, plaintiff appeals. Affirmed.

Argued before VAN WYCK, C. J., and FITZSIMONS, J.

Laehman, Morgenthau & Goldsmith, for appellant.

D. M. Newberger, for respondent.

This is an action for rent. The answer alleges that, for a valuable consideration, the defendant surrendered, and the plaintiff accepted, the demised premises, prior to the time the rent sued for accrued. The plaintiff moved that the answer be made more definite and certain, by specifying the valuable consideration referred to by the defendant in his answer, and the date of the surrender, or that a bill of particulars setting forth such information be served. This motion was denied. We think that the motion was properly denied in this instance, because the plaintiff positively swears that he never accepted a surrender of the demised premises. Therefore it appears from his own affidavit that he had definite information and knowledge concerning said allegation in defendant’s.answer, and therefore it was unnecessary to have the answer more definite by alleging the date or consideration of such alleged surrender. Under such circumstances, the information desired would perhaps be satisfactory, but was not necessary for plaintiff to. know, in view of his said affidavit.

The order is affirmed, with costs.