Whitner v. Perhacs

Ingraham, J. There is but one cause of action set up in the complaint; that is, an action for damages caused by the fraudulent misrepresentations made by defendant. The fact that there are two items of damage, one the amount paid by plaintiff for the stock, and one the value of the services rendered to the corporation, does not make two causes of action. The motion to separately state the causes of action denied. Nor should the plaintiff be required to make the complaint more definite and certain as to the items of the damage alleged to have been sustained by plaintiff. If information is sought upon that ground, the proper remedy is by a bill of particulars, and not a motion to make the complaint more definite and certain. Motion should therefore be denied, with $10 costs. NOTE. Motion to Make Pleadings Certain and Definite. Code Proc. N. Y. § 160, provides that “when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge is not apparent, the court may require the pleading to be made definite and certain. ” Code Civil Proc. N. Y. § 546, provides that, “where one or more allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain. ” Code Proc. § 158, (Code Civil Proc. § 531,) authorizes a bill of particulars in “all cases” where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of pleading. Tilton v. Beecher, 59 N. Y. [758] 176, 184. An averment in a complaint that defendant had criminal intercourse with plaintiff’s wife “on or about the 10th day of October, 1868, and on divers other days and times after that day, ” states definitely the charge against defendant, and a motion to make definite and certain, under Code Proc. § 160, will not lie; but a bill of particulars specifying the times and places at which plaintiff expects to prove that defendant committed the acts charged is .the proper remedy. Id. Averments of the answer in an action on a sealed instrument, that it was agreed between plaintiff and defendant that plaintiff should advance certain money to be used by defendant in purchasing oil, the profits of which were to be shared by plaintiff, that, relying on this agreement, defendant purchased oil, but plaintiff refused to advance money with which to pay therefor, and that defendant, not being able to complete his purchases, was thereby damaged, sufficiently state the nature of the defense, though the items constituting it are not shown, and a motion to make more definite and certain, by stating the dates of purchase, the names of the sellers, and the quantities of oil purchased, and by showing wherein defendant was damaged, will be denied, as plaintiff has a complete remedy by motion for a bill of particulars. Rouget v. Haight, 10 N. Y. Supp. 751. A complaint which alleges that plaintiff was injured by an explosion of gas, “ which explosion * * * was caused by the negligence of the defendants,” contains a sufficient statement of the cause of action, and a motion to make more definite and certain will not lie. Defendant’s remedy against surprise at the trial is by a bill of particulars of the particular facts which plaintiff expects to prove at the trial. Jackman v. Lord, 9 N. Y. Supp. 200. Where a complaint is so. framed that there is no difficulty in understanding the claim of plaintiff, and the circumstances on which he relies to create the liability alleged, defendant’s motion to make more definite and certain will be denied. Winchester v. Browne, 7 N. Y. Supp. 550. The office of a bill of particulars is to amplify a pleading. Higenbotam v. Green, 25 Hun, 214; Ball v. Publishing Co., 38 Hun, 11. Where a complaint, after attempting to state various causes of action because of an alleged breach of covenants in a lease made by plaintiff to defendants, states that, for a fourth and separate cause of action, plaintiff alleges that by reason of the premises he has sustained special loss and damage, without reiterating or adopting any former allegation of the complaint, a motion to have this allegation made more definite and certain should be granted.. McKenzie v. Fox, 8 N. Y. Supp. 460. See, also, Simmons v. Simmons, 4 N. Y. Supp. 221; Blake v. Barnes, 9 N. Y. Supp. 933; Ottomann v. Fletcher, 10 N. Y. Supp. 128. Time of Making. Under Gen. Rule Prac. 22, providing that motions “to correct a pleading on account of its being so indefinite or uncertain that the precise meaning or application is not apparent, must be noticed before demurring or answering the pleading, and within 20 days from the service thereof, ” a motion to make a complaint more definite and certain must be made within 20 days after the complaint is served. Brooks v. Hanchett, 36 Hun, 70, citing Walker v. Bank, 1 Abb. Pr. (N. S.) 406; Roosa v. Turnpike Road Co., 8 How. Pr. 237; New York Ice Co. v. Northwestern Ins. Co., 21 How. Pr. 234; Barber v. Bennett, 4 Sandf. 705.