West v. O'Neill — 70 N.Y. St. Rep. 448

Majority

p. 448

James O. West, App’lt, v. Patrick O’Neill, Resp’t.

(New York City Court, General Term,

Filed October 29, 1895.)

Headnote

Pleading—Answer—Definite and certain.

A motion to make the answer more definite and certain will be denied where it appears that the plaintiff had definite knowledge concerning the matter referred to in the answer.

Appeal from an order, denying a motion to make the answer more definite and certain.

Lachman, Horgenthan & Goldsmith, for appl’t; D. H. Newberger, for resp’t.

This is an action for rent. The answer alleges that, for a valuable consideration, the defendant surrendered, and the plaintiff accepted, the demised premises, prior to the time the rent sued for accrued. The plaintiff moved that the answer be made more definite and certain, by specifying the valuable consideration referred to by the defendant in his answer, and the date of the surrender, or that a bill of particulars setting forth such information be served. This motion was denied. We think that the motion was' properly denied in this instance, because the plaintiff positively swears that he never accepted a surrender of the demised premises. Therefore it appears from his own affidavit that he had definite information and knowledge concerning said allegation in defendant’s answer, and therefore" it was unnecessary to have the answer more definite by alleging the date or consideration of such alleged surrender. Under such circum

p. 449

stances, the information desired would perhaps be satisfactory, but was not necessary for plaintiff to know, in view o£ his said affidavit

The order is affirmed, with costs.