Durant v. East River Electric Light Co. — 18 N.Y. St. Rep. 934

Majority

p. 934

Frederick C. Durant et al., Resp’ts, v. The East River Electric Light Company, App’lt.

(City Court of New York, General Term,

Filed October 26, 1888.)

Headnote

1. Pleadings—Particularity of pleadings obtainable by bill of particulars.

A bill of particulars is the appropriate remedy where a party seeks to be fully apprised of the particulars, or circumstances of time and place, of the matter set forth in his opponent’s pleadings.

2. Same—Motion to make more definite and certain—Restrictions upon USE OF.

A party cannot obtain his opponent's evidence by a motion to make his pleading more definite and certain.

p. 935

Appeal by the defendant from an order made by Justice Pitshke, directing the defendant to amend its answer to the complaint, by inserting in the third subdivision thereof “ the date, place, liber and page of the public record in this city, of the lease mentioned in the answer; and that it aver how it is entitled to the possession alleged.”

First. The complaint alleges that defendant is a domestic corporation.

Second. That plaintiff’s were, at the time of the commencement of this action, the owners, and entitled to the possession of certain chattels (machinery particularly specified and therein described). '

Third. That said chattels were, at the time' of the commencement of this action, in the premises No. 421 East Twenty-fourth street, New York city, which said premises, were heretofore leased by the Durant Land Improvement Company, the grantee of the plaintiffs herein, to the defendant herein.

Fourth. That by the terms of said lease, certain property in the said premises, at the time of the execution and delivery of said lease, to wit, on the 4th day of January, 1888, certain machinery in said premises was also leased to this defendant. That defendant took possession of the said premises under said lease, in which said premises the chattels above described at that time were.

Fifth. That the chattels above described were not, nor were any of them, included in the lease of said machinery to this defendant, but were at that time, and have ever since continued to be, the property of the plaintiffs.

Sixth. That said chattels are now the property of the plaintiffs, and that plaintiffs are entitled to the immediate possession thereof; that the defendant unjustly detains the same after demand made, etc.

Defendant, in his answer, alleges that he is entitled to the possession of the chattels named in the complaint, under and by virtue of a certain lease made between the plaintiffs and the defendant, and dated the 4th day of January, 1888, whereby the premises known, etc., as Nos. 421, 423, 425, 427, 429, and 431 East Twenty-fourth street, and Nos. 428, 430, 432 and 434 East Twenty-fifth street, in said city of New York, were leased to the defendant,, together with certain machinery therein.

A motion was thereupon made by plaintiffs’ attorney that defendant be required to plead specifically to each allegation of the complaint, and “ that defendant be required to. state, in his answer, what machinery, it claims, was leased by the plaintiffs herein to it, as alleged in paragraph 3 of the said answer ; and whether the machinery replevied by plaintiffs was part of the machinery claimed

p. 936

by the defendant to be leased to itand “ that it be required to set forth under what provisions of the lease referred to in the said answer the machinery replevied in the action was leased to it.” Upon the hearing of said motion the order appealed from was made.

W. II. Kelly, for app’lt ; Kelly, Tucker & Henderson, for resp’ts.

It does not appear, from the pleadings herein, that the lease referred to in the third paragraph of the answer has ever been recorded. The answer discloses the date of the lease (January 4, 1888), the parties thereto, the plaintiffs and defendant herein, the premises leased, and the chattels claimed under said lease, viz. : “the chattels named in the complaint.”

Ample provision is made in the Code for an inspection and a copy of the lease, if required by the plaintiff (Code Civ. Pro., | 803), and also for its production upon the trial.

The claim of the defendant is set forth in his answer with sufficient definiteness to enable the plaintiff to prepare for trial.

A party cannot obtain his opponent’s evidence by a motion to make bis pleading more definite and certain ; but, if entitled to, must seek it either under the provisions of the Code permitting an examination of the party before trial, or requiring the service of a bill of particulars. Agnew v. The Brooklyn City R. R. Co., 13 N. Y. Civ. Pro. R. 25.

A bill of particulars is the appropriate remedy, where the party seeks to be fully apprised of the particulars, or circumstances of time and place, of the matter set forth in his opponent’s pleadings. Tilton v. Beecher, 59 N. Y., 176 .

An order requiring a complaint to be made more definite and certain may involve a substantial right, and if so is applicable. Brownell and others v. The National Bank of Gloversville, N. Y. W. D., vol. 13, 371.

The order appealed from must be reversed, with costs.

Nehrbas, J., concurs.