Persch v. Allison — 66 N.Y. St. Rep. 203

Majority

p. 203

John P. Persch, App’lt, v. J. Wesley Allison, Impleaded, etc., Resp’t.

(Supreme Court, General Term, Second Department,

Filed March 5, 1895.)

Headnote

Pleading—Complaint—More definite.

Where, in an action to rescind an agreement on the ground of fraud, a list attached to the agreement enumerates forty patents by number and date, but the complaint does not assert that none of them were owned or controlled by the company, but only states that it did not own or control those “ necessary to operate, license or use the automatic exchanges,” the defendant is entitled to know which ones in the list are referred to, and the plaintiff will be required to make the complaint more definite and certain by stating which of the forty patents the company did not own.

Appeal from an order requiring the plaintiff to make his complaint more definite and certain.

Hugo Hirsh, for app’lt; George Zabriskie, for resp't.

This action was brought to obtain a judgment rescinding a contract between the parties, and to obtain the return. of certain notes and money delivered to the defendant under the contract, and to recover damages. A copy of the agreement was attached to the complaint. By it the defendant agreed to assign and transfer to the plaintiff his right, title, and interest in a license of the Strowger Automatic Telephone Company, for the state of Pennsylvania. A copy of the license was attached to the agreement, with a list of forty patents controlled by said company. The complaint alleged that the plaintiff was induced to enter into said agreement by "the representations of the defendant that said company was “ the owner, licensee, patentee, and had control of the necessary patents to use arid operate automatic telephone" exchanges by automatic switch boards, without the use of central offices, and that no other persons or corporations had received or purchased or were then the owners or controlled the right to the exclusive use and operation of said automatic telephone system for the state of Pennsylvania, bnt that said license conveyed said sole and exclusive right to use arid operate and license said telephone exchange in the state of Pennsylvania.” It further alleged (in the sixth paragraph) that all of said representations so made by the defendant Allison, to the plaintiff, were false and untrue; that the" license issued by the said company to the said defendant, J.

p. 204

Wesley Allison, was worthless, as the said company had no right, title, or power to grant said license; that it was not the owner or licensee of said patents necessary to operate, license and use automatic telephone exchanges in the manner hereinbefore described, and that said Allison possessed no right, title, or interest in said exchange or company which could be utilized ; that on or about the 1st day of August, 1893, and previous to the execution of said license, the said company entered into an agreement with one-Cassius M. Upton in and by which it agreed to sell and deliver to him- a license, and to convey to him, by a good and sufficient deed, the sole and exclusive right to use, operate, and license automatic telephone exchanges in the states of Pennsylvania, New Jersey, Ohio, and Michigan; and that the said Upton fully complied with the conditions of said agreement: but that said company failed to comply with the said agreement; and that an action is now pending in a court of competent jurisdiction, brought by said Upton against the said company, for a specific performance of said contract.

We are of the opinion that the order appealed from was properly granted. It required plaintiff to specify what patents are referred to in the sixth paragraph of the complaint. The list attached to the agreement enumerates forty patents by number and date. It is not asserted that none of .them were owned or controlled by the company, but that it did not own or control those “necessary to operate, license, or use automatic exchanges.” The defendant is entitled to know" which ones in the list are referred to. Again, the allegation that the défendant possessed no right, title, or interest in said exchange or company that could be utilized is very indefinite. The defendant is entitled to know what the plaintiff means or refers to by the word “ utilized ” ; whether he intended to claim that the patents were worthless or impracticable, and, if so, whether the claim referred to all or only a part of those named in the list, or whether the claim was that the defendant’s interest in the patents was of such a meager character that its assignment to the plaintiff would not transfer to him a right which he could use in a practical way or manner. The allegation in the seventh paragraph that the company had failed to comply with its agreement with Upton would appear to be unnecessary to the plaintiff’s cause of action, but, if it is to remain in the complaint, •it should be made sufficiently definite for the defendant to know what facts he will be called upon to meet at the trial. The plaint iff may, however, elect to strike out that part of the seventh paragraph^ and he should have permission to omit it from the amended complaint. With this modification, the order should be affirmed, with costs.

Order modified so as to permit plaintiff to amend his complaint, as indicated in the opinion, and, as modified, affirmed, with $10 costs and disbursements.

All concur.