Rosenthal v. Rosenthal — 32 N.Y. St. Rep. 438

Majority

p. 438

Fannie Rosenthal, App’lt, v. Joseph Rosenthal, Resp't.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Pleading — Motion to make definite and cebtain — Demand.

In an action to recover moneys deposited with defendant for investment which he failed to make, the. complaint alleged a demand for its return. Held, that defendant was entitled to have the complaint made definite and certain by alleging the date and place of the demand.

Appeal from order granting motion to make complaint more definite and certain.

Jonas jF. Mann, for app’lt; Wm. M. Cohen, for resp’t.

The plaintiff seeks to recover the sum of money deposited with the defendant for investment by him for her or to be returned to her, and in the complaint, alleging this understanding and his failure to make an investment, avers a demand.

The defendant moved for an order compelling the plaintiff to make the complaint more definite and certain, by inserting the time when the demand was made, and the application was granted. The order made in the court below was properly directed.

The defendant was entitled to knowledge of the time and place of the demand. If that ceremony or incident is a necessary factor of the plaintiff’s case, it should be so averred that the defendant may not only.answer it, but be prepared to meet it. It is not an answer that the requirement demands an expose of the plaintiff’s evidence. It does not relate to the manner of proof but to the complete averment of a fact, namely, the time of the occurrence of an important part of the plaintiff’s case, and which being given may have an equally important bearing upon the answer to be made by the defendant. The Code requires a plain statement of facts in the complaint, and in such detail as will advise the defendant of the claim urged against him. _ If this be not done, the court may compel the plaintiff to make it more definite and certain, and this is-in accord with the. general spirit of the Code. Aside from that, the statement asked here should have been given.

If it had been, the court below and this court would have- been relieved of the necessary burden of hearing and deciding the application and appeal. It too frequently happens that motions which should be wholly unnecessary are made, and appeals equally

p. 439

unnecessary are taken, but which are forced from a disposition to suppress information which should be given in the fair conduct of an action; a characteristic, doubtless, arising from over professional zeal, but which is of no value to the client, often an expense, and is a disturbance of the regular order of procedure. It is not deemed necessary to examine the authorities bearing upon this question, which are numerous and to some extent discordant, and naturally so as the applications vary and it is not possible to formulate a general rule. Discretion substantially must be the prevailing doctrine, and here it was properly exercised.

If not, then as each case may be said to be sui generis, the indefiniteness must depend upon the general features and allegations of the complaint taken in connection' with that objection. The order made herein, however, was not erroneously directed, and should be affirmed, with ten dollars costs and disbursements of this appeal.

Van Brxjnt, P. J., and Daniels, J., concur in the result