Peart v. Peart — 15 N.Y. St. Rep. 476

Majority

p. 476

Miranda Peart, Resp’t, v. James Peart, as Executor, et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed April 14, 1888.)

Headnote

1. Pleadings—Ordered to make more definite and certain—Mat be REVIEWED.

This appeal was taken by the defendants from an order of the special term denying their motion that the plaintiff be required to make her complaint more definite and certain. Held, that orders made at the special term involving questions as to the form of pleadings, and whether they contain irrelevant, redundant or scandalous matter, or are so indefinite and uncertain that the precise meaning or application of an allegation is notapparent, are reviewable on appeal by the general term, and subject to correction.

2. Appeal—Rights to—What is not waiter of.

After the service of the order the defendants answered the complaint and then served their notice of appeal. Held, that the defendants did not by answering waive their right of appeal.

3. Pleadings—Motion to make more definite and certain—What is not WAIVER OF.

The defendants’ original motion was founded on Code Civ. Pro., § 546, providing that when one or more denials or allegations contained -in a pleading are so indefinite and uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. By rule 22 such a motion must be noticed within twenty days from the service of the pleading and before answering, or demurring thereto. The defendants’ notice of motion was not served within the time limited by the rule. The plaintiff gave a stipulation extending the time to answer or for the defendants to move the court as they might be advised. Held, that the acceptance of that favor from the plaintiff did not constitute a waiver of the right of the defendants to make the motion that the complaint be made definite and certain.

Motion to dismiss an appeal taken by the defendants from an order of the Monroe special term denying their motion that the plaintiff be required to make her complaint more definite and certain.

P. Chamberlain, Jr., for the motion; Waldo G. Morse, opposed.

—The order is appealable. It is definitely settled, so far as this court is concerned, that orders made at special term involving questions as to the form of pleadings, and whether they contain irrelevant, redundant or scandalous matter, or are so indefinite and uncertain that the precise meaning or application of an allegation therein is -not apparent, may be reviewed by this court on appeal, and if any error has been committed, to correct the same. Sprague v. Dunton, 14 Hun, 490 .

This case was decided in this court, and since made, it has been followed by us. It is unnecessary to refer to prior decisions by this court, or to subsequent decisions by other tribunals, which hold to the contrary. After the order appealed from was granted and served, the defend

p. 477

ants answered the plaintiff’s complaint, and then served notice of their appeal. By answering, the defendants did not waive their right of appeal. That act was but a regular step in the course of procedure, and in strict compliance with the rules of practice. The order appealed from did not grant to the defendants any favor, and there is no reason for saying that they have acquiesced in or derived any benefit therefrom.

The defendant’s original motion was founded on the provisions of section 546 of the Code of Civ. Pro., which provides that where one or more denials or allegations, contained in a pleading are so indefinite and uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. By rule 22, the motion must be noticed within twenty days from the service of the pleading, and before answering or demurring thereto. Ho other regulation is prescribed by this rule. The defendants’ notice of motion was not served within the time limited by the rule, but as the plaintiff gave a stipulation extending the time to answer or for the defendants to move the court, as they might be advised, the acceptance of that favor from the plaintiff did not constitute a waiver of the right of the defendants to make the motion that the complaint be made more definite and certain. On this motion, we can only inquire, whether since the denial of the defendants’ motion a,t special term, they have done anything which constitutes a waiver of their right of appeal, and as we are unable to find that they have, the respondent’s motion to dismiss the appeal is denied, with ten dollars costs and disbursements.

All concur.