P. J. Harney Shoe Co. v. A.H. Ginzberg-Gordon Co.

Shearn, J.: The defendant appeals from an order directing the amended answer to be made more definite and certain in seventeen particulars. The action is for goods sold. There are two causes of action. The defendant sets up several separate defenses and counterclaims. It is only necessary to read this pleading to see that it fails to set forth a plain and concise statement of the facts constituting the defense and counterclaim. Resort is had to the vaguest generalities and no issue would be raised by a reply to such allegations. The appellant contends that the remedy should have been to require a bill of particulars. Without entering upon a discussion of when [497] it is proper to require a pleading to be made more definite and certain and when to relegate a party to a bill of particulars, it is apparent that the allegations in this pleading are so indefinite and uncertain that the precise meaning thereof is not apparent and, therefore, the case comes well within section 546 of the Code of Civil Procedure. With respect, however, to the third group of the requirements, items 6, 11 and 17, these fall within the rule requiring the claim to be stated in a bill of particulars. These items call for definiteness with respect to the claim that the merchandise was inferior and not up to sample and standard of quality. When the answer has been properly amended so that it definitely and precisely states what was the standard of quality and what was the sample, it will suffice to allege generally that the goods were not up to and were inferior to such standard and sample. The particulars of the defects and of the failure to come up to standard and sample are peculiarly matters for a bill of particulars and not for the pleading. Accordingly the order should be modified by eliminating the requirement to make more definite and certain items 6, 11 and 17 and as modified affirmed, without costs. Clarke, P. J., Smith, Page and Davis, JJ., concurred. Order modified as stated in opinion and as modified affirmed, without costs.