Cudlipp v. Whipple — 11 N.Y. Super. Ct. 610

Majority

p. 610

Cudlipp v. Whipple.

Headnote

A complaint to recoyer for money lent to, and paid, laid out and expended for, the defendant, at his request, is sufficient under the Code; though as general in its allegations of the particulars of the cause of action as the old form of a declaration in indebitatus assumpsit. If the defendant wishes a more detailed statement, his remedy is to demand in wilting a copy of the account or the particulars of the cause of action.

(Before Oaklet, Ch. J.)

At Chambers,

Dec., 1854.

The defendant moved for an order requiring the plaintiffs to amend their complaint, so as to make it more definite and certain.

The plaintiffs brought this action, as assignees of a demand which one James Whitney had against the defendant.

The facts in relation to the demand were stated thus, in the complaint.

“ The defendant was indebted to one James Whitney on the 3d of November, 1853, in the sum of $5,046 ⅛⅛, being a balance of account due from said defendant to said Whitney, on an account for money lent by said Whitney to said defendant, and for money paid, laid out and expended by said Whitney to and for the use of said defendant, and at his request”

The defendant moved that the plaintiff be compelled to make this part of the complaint more definite and certain.

J. H. Harter for the motion.

K Terry opposed.

The Court of Appeals in Allen v. Patterson, (3 Seld. R. 476,) decided that a complaint in an action to recover for goods sold, substantially in the old'form of a declaration in in-debitatus assumpsit, was good under the Code. There seems to be no distinction in principle between that case and this.

This action is brought to recover a balance alleged to be due upon an account for moneys loaned to and paid, laid out and expended for the defendant, at his request.

Section 158 of the Code, expressly declares, that it shall not be

p. 611

necessary for a party to set forth, in a pleading the items of an account therein alleged, but he shall deliver to the adverse party, ■within ten days after a demand thereof, in writing, a copy of the account.

This section has provided that a complaint in a case like this may be as general in its statements as the old indebitatus assumpsit counts. It also enables the adverse party to obtain a detailed statement of the particulars of the cause of action without an application to the court. He has only to demand in writing a copy of the account, and it must be furnished. The complaint in this case is therefore as specific and full in its allegations as the Code requires. If the defendant has any doubt as to the items in respect to which a recovery is sought, his remedy is, to demand a copy of the account constituting the cause of action stated in the complaint.

The motion must therefore be denied.

DueR, Campbell and Boswoeth, J. J., concurred.