Pringle v. Mulholland

PINELITE, J. Defendant demurs to plaintiff’s complaint upon the' ground that the same does not state facts sufficient to constitute a cause of action. The complaint is for money loaned to the defendant by one John Battle, plaintiff’s intestate. Paragraph 1 of the said complaint is as follows: “That on or about the 9th day of July, 1904, at the city of New York, the plaintiff's, intestate loaned to the'defendant above named the sum of §18,000, which the defendant promised to repay, with interest, pursuant to a certain •agreement, heréto annexed and marked ‘Schedule A,’ which is hereby made a part of this cojnplaint.” Defendant contends that his demurrer should be sustained, for the reason that the Schedule A, above referred to, or a copy of the alleged agreement, is not annexed or set out in said complaint, and for that reason the complaint does not state facts sufficient to constitute a cause of action. The court believes that the complaint contains all the elements necessary to maintain an action for money loaned, viz., the loan is set forth, and the- date, to wit, July 9, 1904, the promise to repay, that a part thereof has been paid, and that there is still due and owing from the defendant $700 and interest, so if the schedule or agreement was entirely eliminated, and no mention made of it, still the complaint, containing as it does the allegations above referred to, would be sufficient to sustain the action for money loaned. The better practice, it strikes the court, would be a motion to make the complaint more definite and certain as to the substance of the agreement. “Where the. allegation in relation to a written instrument is indefinite in failing to state its date, or as to a fact in relation to the instrument itself, upon which its validity or effect may depend, to enable the defendant to plead siich a defense as the statute of frauds, the statute of limitations, etc., * * * the proper remedy is to move to make the pleading definite in the particulars in which it is indefinite.” Pigone v. Lauria, 115 App. Div. 286, 100 N. Y. Supp. 976. The agreement is not annexed to the complaint, and the defendant may desire to inform himself as to a fact in relation to it, and as he is entitled to know its substance a motion will lie to make the com.plaint more definite in that particular. However, the court is of the [574] b.elief that the allegations of fact set forth in the complaint are sufficient to apprise defendant just what facts are relied on by the pleader to sustain his right to a recovery. Demurrer overruled, with leave to defendant to plead over upon payment of costs.