Texas Standard Cotton Oil Co. v. Mutual Fire Insurance — 35 N.Y. St. Rep. 794

Majority

p. 794

The Texas Standard Cotton Oil Co., Resp’t, v. The Mutual Fire Insurance Co., App’lt.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Pleading—Motion to make definite—Coepobationb.

Where a corporation is charged generally with having made false and -fraudulent representations a motion to make the pleading more definite and certain may properly he granted, as it is impossible for the corporation to determine from such pleading what may he the course of proof upon, the trial and thus have the proper persons in court to refute the charges made against it.

Appeal from order directing answer to be made more definite and certain.

Stein & Caiman, for app’lt; Benno Loewy, for resp’t.

This action was brought to recover the alleged loss of the plaintiff by fire on certain property insured by the defendant. The answer admits the issuing of the policies, denies the amount of the loss sustained and alleges that the agreement mentioned in the complaint fixing the amount of the loss was entered into by the defendant on the strength of and in reliance upon false and fraudulent representations upon the part of the plaintiff as to the amount of the loss, and that false and fraudulent statements were made by the plaintiff and its authorized agents to the defendant and its authorized agents; and that all the agreements made were made in reliance upon such false and fraudulent statements.

It also alleged that the fire by which the property of the plaintiff was destroyed or damaged was caused by the act, neglect, or. with the connivance of the plaintiff or of parties interested in said property. The plaintiff thereupon moved to have

p. 795

the answer made more definite and certain; and the court ordered that said answer be made more definite and certain by-inserting what false representations were made as to the amount of its loss and damage, and where and when and by-whom made, and in what respects such statements were false and untrue; and, also, when, where, and by whom a certain alleged agreement mentioned in the answer was entered into, and what'the fraud or false swearing alleged by the answer consisted of, and by whom committed; and in what the alleged neglect of the plaintiff to use means to preserve the property at and after the fire consisted of, and what loss was sustained by reason thereof. And from such order this appeal is taken.

The ground upon which the appellant rests is that the decisions of the courts of this state have been nearly unanimous, as he claims, that such a motion will not be granted where the plaintiff has all the knowledge on the question at issue in as full a measure as the defendant.

However applicable such a rule may be as to individuals, its stringency must necessarily be relaxed where one of the parties is a corporation and acts by its trustees, officers and agents; because such a plaintiff cannot be expected to have in court every agent, officer and trustee upon the trial of any cause intop which an allegation of fraud may have been injected.

The»allegations alleged to have been fraudulently made are •stated in the answer to have been made by the plaintiff or its authorized agents. The plaintiff was entitled to know before going to trial by whom, and when and where such representations were made in order that it should have the individual pres-ent upon the trial, or that it might examine him in case he should be a non-resident of the state, to meet any proof which might be offered by the defendant upon the trial. The allegation in regard to what the representations were is absolutely indefinite, and conveys no notice to the party as to what it is charged with; and the plaintiff is entitled to know with a reasonable degree of definiteness what is the claim which the defendant will urge upon the trial in order that it may make proper preparation to meet it

It is a familiar principle that where a party is charged with making fraudulent representations that he knows whether or not he did make such false representations. But when a corporation is charged with having made false representations, it is impossible for it to determine what may be the course of proof upon the trial, and thus have the proper parties in court to refute the charges made against it

It is needless to go through the various portions of this order as to which relief has been granted, because the principle which controls one controls all.

We think that none of the objections to the order which have been urged before the court are well taken. But, in the affirmance of the order, we do not intend to support in its entirety the practice pursued upon this application ; but simply to rule upon the questions which have been raised upon this appeal.

p. 796

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett and Barrett, JJ., concur.