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McDonald v. Winchester Repeating Arms Co.

92 N.Y.S. 618 Court N.Y. App. Div. Decision date 1905-03-10 English

Delivered by WILLARD BARTLETT, J.

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p. 618
McDonald v. WINCHESTER REPEATING ARMS CO.
(Supreme Court, Appellate Division, Second Department.
March 10, 1905.)

Headnote

1. Complaint—Motion to Make Mobb Definite.
Motion to make the complaint for breach of warranty more definite, to show whether the action is in tort or contract, is properly denied, all the allegations of the complaint being appropriate to the statement of a cause of action on the case in tort.
2. Bill of Pabticulabs.
Defendant’s application for bill of particulars before issue is properly denied, he being given leave to renew it after joinder of issue.
[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 974-976.]
Appeal from Special Term, Westchester County.
Action by Samuel R. McDonald, an infant, by Charles McDonald, guardian ad litem, against the Winchester Repeating Arms Company. From an order denying a motion to require plaintiff to make the complaint more definite and certain, and for other relief, defendant appeals. Affirmed.
Argued before BARTLETT, WOODWARD, JENKS, RICH, and MILLER, JJ.
C. N. Bovee, for appellant.
George W. Elkins, for respondent.

The avowed purpose of this motion is to compel the plaintiff to state whether the cause of action set out in the complaint is a cause of action upon contract or a cause of action in tort. We think that this is an action upon the case in tort for a breach of a warranty of goods, and that the court below was right in denying the motion, inasmuch as all the allegations of the complaint are appropriate to the statement of a cause of action in a suit of this character. See Shippen v. Bowen, 122 U. S. 575 , 7 Sup. Ct. 1283 , 30 L. Ed. 1172 . In the case cited it is said to be now well settled, both in English and American jurisprudence, that either case or assumpsit will lie for a false warranty.

The application, so far as it sought a bill of particulars before issue, was also properly denied, the rights of the defendant being adequately protected by the leave which was granted, in the order appealed from, to renew this part of the motion after the joinder of issue.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. A11 concur.

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