Sixth Avenue Railroad v. Manhattan Railway Co. — 54 N.Y. Super. Ct. 323

Majority

p. 323

THE SIXTH AVENUE RAILROAD COMPANY, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Headnote

'Complaint, service of, and answer to—Effect of, on motion pending.— Practice.

A motion was made by defendant before answer served, that plaintiff be directed to state separately several causes of action claimed by defendant to be set up in the complaint. This motion was denied, and defendant had appealed from order of denial, and appeal was pending, when an answer was served. *

Meld, That the service of the answer was an abandonment of all claims under the order appealed from, and an abandonment of the right to appeal, and the appeal was dismissed.

p. 324

The plaintiff appealed from a part of same order directing Mm to furnish the defendant with a bill of particulars setting forth with reasonable precision the nature of the damages sought to be recovered in the action. On this appeal this part of the order was affirmed, the General Term holding that this appeal did not embrace a consideration of the effect of serving an answer after the order was made.

Before Sedgwick, Ch. J., Truax and Dttgro, JJ.

Decided April 13, 1887.

Appeal by defendant from a part of an order, which part denies a motion of defendant that plaintiff be directed to state separately several causes of action, claimed by defendant to be set up in the complaint.

Motion by plaintiff to dismiss the appeal on the ground that since the making of the order, the defendant has served an answer.

Davies, Cole & Rapadlo, attorneys, and Edward S. Rapadlo of counsel for appellant.

Burrill, Zabriskie & Burrill, attorneys, and J. E. Burrill and Geo. Zabriskie, of counsel for respondent.

The defendant by answering has es tablished the complaint as it is, as the complaint, and of course, the only complaint in the action. The defendant cannot require the plaintiff to make another complaint or reform the present complaint. There cannot be two complaints. The one already served is the foundation of an issue, which the plaintiff has a right to have tried and which the defendant has voluntarily made. The service of the answer was an abandonment of all claims under the order as appealed from and an abandonment of a right to appeal.

The motion to dismiss the appeal is granted with $10 costs. '

Appeal by plaintiff from a part of the same order,

p. 325

requiring plaintiff to “ furnish to the defendant a bill of particulars, setting forth, with reasonable precision, the nature of the damages sought to be recovered in this action.”

The court below had to make the order appealed from. Its discretion was properly used in the present circumstances. The complaint was general in its terms, in averring the damages. Ordinarily this is sufficient, because ordinarily the claim for damages points the defendant to the direct consequences of the wrong. In the present case it is clear that the damages consist of several heterogeneous kinds. An important part of the litigation will concern the relation between these kinds and the cause of action as claimed. There should be no doubt as to the claim the defendant is called upon to answer. No injustice is done to the plaintiff. It is not required to make a bill of a rigidly exact kind. There is to be reasonable precision and under the order as made, the court will be called upon perhaps to determine what will be a compliance with this direction.

This appeal does not embrace a consideration of the effect of serving an answer by the defendant after the order was made.

Order affirmed with $10 costs.