Schellens v. Equitable Life Assurance Society of the United States

Headnote

Oom/plaint — motion to make it more definite and certain — allegation that the plaintiff has teen deceived by false representations made by the officers and agents of a defendant corporation — when the names of such officers and agents must be given.

Appeal from an order of the Special Term denying a motion to make the complaint more definite and certain.

The court at General Term said: “"We think the motion was correctly disposed of at Special Term, except perhaps, in one single particular. The complaint alleges that the defendant hy its officers cmd agents' made divers representations which the complaint claims to have been false. In strictness this was bad pleading. The allegation should have been that the defendant made the representations under the maxim qui facit per aliwm, facit per se. If the plaintiff chooses to allege that a corporation by its officers and agents makes false representations, we think there is no good reason why he should not declare specifically in the pleadings the particular officers or agents by whom he claims such representations were made.

“ The defendant in this case undoubtedly employs many hundred, perhaps thousands, of persons who may be designated its officers and agents, and it is no hardship in requiring the plaintiff to state by whom the alleged false representations were made, otherwise it would impose upon the defendant the hardship of going to trial without notice of the particular officer who is chargeable with hav

ing been guilty of tbe fraud, but under the necessity of bringing all its officers and agents to meet such an allegation.

“ A motion for a bill of particulars does not seem to be an efficient remedy. We think that if the plaintiff persists in this form of pleading he should indicate the names of the officers and agents who committed the fraud.’’