Majority
p. 797Edward Gustaveson, Resp’t, v. Ira L. Otis et al., App’lts. (Supreme Court, General Term, First Department, Filed Jannary 12, 1894.)
Headnote
Pleading—More definite.Where the complaint, in an action for use and occupation, describes the premises as situated on the sides of three streets in the city of New York, a motion to make it more definite and certain in this respect will be granted.
Appeal from an order denying a motion to make the complaint more definite and certain.
The complaint is as follows:
The plaintiff complains of the defendants, and respectfully shows to this court that, at all the times hereinafter mentioned, the defendants were copartners in trade, under the name of Otis & Gorsline; that heretofore, and at all the times hereinafter mentioned, this plaintiff was the tenant and occupant of certain premises in the city of Hew York, situated on the north side of 139th street, east side of Rider avenue, and west side of Morris avenue; that heretofore, and during the period on and between April 1, 1892, and the 1st day of February, 1893, the defendants occupied certain portions of the premises above described for the purpose of storage for certain sewey pipes by permission of this plaintiff, and as his tenant; that the fair and reasonable value of the use of the said premises for that period was the sum of one hundred and fifty dollars; that, though duly demanded, no part of the same has been paid. Wherefore, plaintiff' demands judgment against the defendants for the sum of one hundred and fifty dollars, with interest thereon from the 1st day of February, 1893, together with the costs and disbursements of this action.
Q. A. Strong, for app’lts; A. H. Smith, for resp’t.
So much of the motion as asks that the complaint should be made more definite and certain, by including a definite description of the premises alleged to have been occupied, should have been granted. The order should be reversed, and motion granted to this extent, with $10 costs and disbursements, to abide the event.