Seasongood v. Fleming — 57 N.Y. St. Rep. 203

Majority

p. 203

A. J. Seasongood et al., Resp’t, v. James A. Fleming, App’lt.

(Supreme Court, General Term, First Department,

Filed December 15, 1893.)

Headnote

Pleading.—More definite and certain.

A motion to make a complaint more definite will be granted, where the the title of the action indicates that it was brought against defendant individually, but the complaint seems to support an action against him as treasurer of a territory.

Appeal from an order denying a motion to make the complaint more definite.

R. F. Clarice, for app’lt; Rush Taggart, for resp’ts.

The title of the action would indicate that it was brought to charge the defendant individually, but a reading of the allegations of the complaint would seemingly support a cause of action against either the territory of Arizona, or against the defendant as treasurer of that territory; and, as the inconsistency thus created might produce confusion and injury if the election which the plaintiffs should make were left until the trial, we think it was but right that, instead of leaving the defendant to guess in what capacity he was sue'd, the plaintiff should be compelled to make the complaint definite by a proper allegation as fo whether he intends to charge the defendant personally or officially.

The order should therefore be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.