Friedman v. Denousky

Chester, J.: The court was asked to make the order in question under its power to make the complaint more definite and certain, but that power cannot properly be exercised except' where the allegations of. the pleading are so indefinite or uncertain that the precise 'meaning or application thereof is not apparent. (Code Civ. Proc. § 546 ; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181.) An inspection of this pleading reveals no uncertainty or indefiniteness, and its meaning and application are clearly apparent. Indeed there is no substantial criticism of it except in respect to the question of damages. The allegations are that the defendants entered into an agreement with the plaintiffs for the purchase of a specified number [260] and kind of bags and a stated number of pounds of light copper at agreed prices stated in the complaint, to be delivered on a day and place named, and to be paid for on delivery; that at the time and place named the plaintiffs delivered such goods to the defendants and demanded payment therefor; that the defendants refused to receive and accept the same, and refused to pay the plaintiffs the agreed price therefor, and that the defendants failed to perform the' contract upon their part, by reason of which the plaintiffs suffered damage in the sum of $125. The court on the trial would have no difficulty in applying the correct rule of damages if the plaintiffs prove such a breach of contract as they allege without any amplification or amendment of the complaint. We think the order was inadvertently .granted. The order should be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the defendants granted leave to answer within twenty days upon the payment of such costs. All concurred. Order reversed, with ten dollars costs' and disbursements, and motion denied, with ten dollars costs, with leave to defendants to answer within twenty days upon payment of such costs.