Majority
p. 425Irene Pinto De Carrillo, Resp’t, v. Enrique Carrillo, App’lt. (Supreme Court, General Term, First Department, Filed July 9, 1889.)
Headnote
Pleading—Motion to make make definite and certain—General practice—Rule lío. 22.A motion to make a complaint more definite and certain must be made before answering.
Appeal from an order denying a motion to make the complaint more definite and certain.
Emmet H. Olcott and William Q. Judge, for app’lt; William Nelson Cromwell and Merritt E. Haviland, for resp’t.
The answer of the defendant in this action was served on the 17th of November, 1888, and the notice of motion to make the complaint more definite and certain was not given until the latter part of January, 1889. This entitled the plaintiff to a denial of the motion, for, by rule 22 of the general rules of practice, a motion of this description is required to be made before the service of a demurrer or an answer. The order, accordingly, should be affirmed, with ten dollars costs and also the disbursements.
Van Brunt, Oh. J., and Barrett, J., concur.