contract is sufficient. Bement v. Smith, 15 Wend., 493; Golden Gate Co. v. Jackson, 14 Abb. N. C., 323; Hunter v. Wetsell, 84 N.

Y.. 549.

No reason has been shown for a reversal of the judgment, and it must be affirmed, with costs.

BECKWITH, Ch. J., and HATCH, J., concur.

JOHN A. COOK, Resp't, v. JUDIAH II. MATTESON, App'lt.

(Superior Court of Buffalo, General Term, Filed October 30, 1890.)

PLEADING-MOTION TO MAKE DEFINITE AND CERTAIN.

A motion to make a pleading definite and certain can only be granted where the allegations are not clear or intelligible. It cannot be granted to compel particularity of statement.

APPEAL from an order directing an amended answer to be made more definite and certain.

Frank C. Ferguson, for resp't; Harlan J. Swift, for app'lt.

HATCH, J.-The motion in form was to amend the answer, but the recitals in the order as entered show that the amended answer had been or was then served and that by consent the whole was considered. As the amended answer superseded the original and the parties appeared by consent and argued the motion, and the order was to make the amended answer more definite, the court must now treat it as though the motion was to correct the amended answer, as that was the only pleading to which the motion could be made applicable and effectual at the time it was heard. It will not be presumed that the court heard an argument and made an order affecting a pleading which had been superseded and was of no vitality, especially when the amended answer was referred to in terms, and was then the answer in the case. While we think the court had jurisdiction to make the order, we are of opinion that the plaintiff failed to show himself entitled to the order asked or granted. The motion is to be determined upon an inspection of the pleading, and if from such inspection the court can see, with reasonable certainty, the meaning of the allegations, and the cause of action intended therein to be set forth, the pleading will be held sufficient to resist a motion to make it more definite. Brownell v. National Bank of Gloversville, 13 Wk. Dig., 371.

The right to relief depends upon whether or no the charge is obscure; if the precise nature of the charge is apparent, then the statute is not authority for granting relief. Tilton v. Beecher, 59 N. Y., 183. Insufficiency in this respect must plainly appear. People v. Tweed, 63 N. Y., 201. Tested by these rules we think the portion of the answer which the order aims at is sufficient; it alleges by way of counterclaim that while plaintiff was working for defendant he induced him to purchase a piece of land in the city of Buffalo, defendant to pay the purchase-price and take plaintiff's note for a small portion thereof, and allow the balance of the purchase price of plaintiff's portion to be paid for by his serv ices in selling the land, plaintiff to become a part owner thereof. N. Y. STATE REP., VOL. XXXIII.

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That the defendant induced thereby by plaintiff entered into a contract for the purchase of the land, advanced such portion of the purchase price as was needed to consummate the purchase, became obligated to pay the remainder, and took plaintiff's note for the sum of $500, which was his portion of the purchase price for which he was to give a note. It then alleges that about the time of making said agreement plaintiff was employed, by the persons having said land for sale, to effect a sale thereof, and that he was acting as their agent in effecting such sale, and fraudulently concealed it from defendant. That when said contract was effected, while plaintiff was acting as agent of the owners of the land, and in order to sell the same to defendant, he falsely and fraudulently represented that the purchase price was $750 more than the parties for whom the plaintiff was acting asked or were to receive for the land, which amount, under an agreement with the owners, he was to receive for effecting a sale; that plaintiff fraudulently concealed this from defendant and permitted him to pay to the owners said sum, and the same was thereafter paid to plaintiff; that on account thereof plaintiff has received and holds said sum for the use and benefit of defendant; that plaintiff neglects and refuses to pay over said sum, or any part thereof, to the damage of defendant in the sum of $750. Stripped of verbiage these are the allegations; from them we have no difficulty in seeing that the intent of the pleader was to allege a joint purchase of land, defendant to advance the money, taking plaintiff's note for a portion of his payment, he engaging to render services in connection therewith for the balance, each sharing equal therein. That defendant took the note, paid the necessary money to consummate the purchase and then discovered that plaintiff was the agent of the owners and received $750 for effecting the sale. It is unnecessary to determine whether from these facts defendant becomes entitled to receive back the $750 as a legal result; it is sufficient to say that the allegations themselves are clear and intelligible. The order as made requires defendant to state definitely the piece of land, locating and describing it, when he bought, from whom, and who were the owners; what interest the plaintiff had, and what his relation and connection with the transaction was; under what arrangement plaintiff's note for $500 was taken, and the other facts with definiteness upon which he bases the counterclaim for $750. It is at once apparent that what is here sought for, and directed, is not definiteness of allegation, but particularity of statement.

As was said by Judge Rapallo, in Tilton v. Beecher, supra, the section of the Code invoked "enables a party to obtain a definite statement in the pleadings of the nature of the charge intended to be made against him, but not of the particulars or circumstances of time or place."

In McCarthy v. Ñ. Y. C. R. Co., 6 N. Y. Supp., 560; 24 N. Y. State Rep., 924, the allegation was that "defendant carelessly and negligently ran and propelled one of its cars upon and against the plaintiff, whereby he was injured." A motion to make more definite and certain was denied, the court saying: "It is difficult

to see how the facts could be more clearly and concisely stated, unless the particular circumstances showing the conduct of the defendants' servants are required to be given, and such circumstances merely tending to prove the facts need not be alleged, and have no place in the pleading." Brown v. Champlin, 66 N. Y., 219; Lahey v. Kortright, 55 J. & S., 156-160; 12 N. Y. State Rep., 71; Williams v. Folsom, 10 N. Y. Supp., 895; 32 N. Y. State Rep., 455.

In addition to this the plaintiff is shown, by the allegations, to to be possessed of equal information, upon the subject he desires information, with the defendant, as he must know whether or not he made the contract as alleged and the circumstances connected therewith; more definiteness of statement can scarcely add to his information. Brinkerhoff v. Perry, 12 Wk. Dig., 459; Schmidtkunst v. Sutro, 2 N. Y. Supp., 706; 19 N. Y. State Rep., 913.

If plaintiff be entitled to any information, it would seem to fall more appropriately within the office of a bill of particulars. It is suggested that the order is needed to determine whether the pleading sounds in tort, and if so, plaintiff desires to demur thereto. A fair construction of the fourth answer shows it to allege a counterclaim for money had and received to defendant's use, and the whole pleading shows that the pleader intended to set up a claim founded upon both an express and implied contract, while the demand for judgment is not for damages, but for money and costs. This sufficiently characterizes the pleading. McDonough v. Dillingham, 43 Hun, 493; 7 N. Y. State Rep., 137.

Under the facts stated in this pleading the allegations of fraudulent acts may be treated as surplusage, and, where such is the case, a motion will not be granted to make them more definite. Davidson V. Seligman, 51 J. & S., 47.

There is here presented no such absence of certainty in allegation as will uphold the order made. It is therefore reversed and set aside, with ten dollars costs and disbursements.

BECKWITH Ch. J., concurs; TITUS, J., did not sit.

MARTIN BERGMAN, Resp't, v. NATHAN WOLFF, App'lt.

(Superior Court of Buffalo, General Term, Filed October 30,,1890.)

1. JUSTICES' COURTS-JURY-LAWS 1889, CHAP. 505.

Where the justices' court has jurisdiction of the subject-matter and the parties, and the case proceeds to trial and judgment without objection, a failure to draw the jury according to the provisions of chap. 505, Laws 1889, must be deemed an irregularity only, which is waived by a failure to object thereto.

2. SAME-MUNICIPAL COURT OF BUFFalo.

Chap. 505, Laws 1889, does not apply to the municipal court of Buffalo. APPEAL from a judgment rendered by the municipal court of Buffalo.

M. Fillmore Brown, for def't; Frank Ferguson, for pl'ff.

HATCH, J.—The municipal court of Buffalo is a local court, created by a special statute passed May 20, 1880, and was de

signed to supersede courts of justices of the peace in the city. By section six of said act, it is provided that "the process, pleadings, practice, trial by the court or by jury, fees, costs and disbursements, judgment by action or confession, and proceedings thereon, shall be the same as now provided by law for justices' courts, except as otherwise provided." In 1889 the legislature amended the sections of the Code regulating the drawing of a jury in jus tices' courts by requiring that thereafter the justice should, from a list made up by the town clerk, draw the jurors from a box, and such jurors so drawn should be summoned by the constable.

Under the former system the justices delivered the venire to the constable, who proceeded to summon the jury. The practice followed in the present case was under the old system, and the claim is now made that such procedure was without authority of law, that there was no jury authorized to render a verdict, and that the court was without jurisdiction to render the judgment. The action was brought to recover damages for breach of contract in leasing certain premises. The court possessed power to adjudge upon the questions involved, and therefore had jurisdiction of the subject-matter. Subdivision 2, § 5, Municipal Court Act; Hunt v. Hunt., 72 N. Y., 229.

The defendant was properly served with a summons, appeared, joined issue and demanded trial by jury; the court, therefore, had jurisdiction of the person. Lange v. Benedict, 73 N. Y., 27.

The judgment rendered is such judgment as was appropriate to the action, and within the authority of the court. Having jurisdiction of the subject-matter and of the person, and rendering judgment within the prescribed limits of authority, if any error was committed it must be classed as an irregularity merely, for a case cannot exist where jurisdiction is more ample and perfect. How the jury which rendered the verdict was summoned and empaneled is matter of small consequence in the present case, for the defendant demanded it, accepted it when empaneled, and submitted his case for its determination; he must, therefore, be held to have waived whatever of irregularity occurred in connection with its procurement.

It was said in Clark v. Van Vrancken, 20 Barb., 281, "A challenge to a juror does not go to the jurisdiction of the tribunal; although a juror be incompetent as such, the trial is not invalidated; and the only mode by which the incompetency can be alleged, and the facts constituting it introduced, is by a challenge which must be supported by proof, if the facts are disputed. Where there is no challenge, there is no issue, and no basis for the proof. And the challenge must be made before the trial, otherwise the right to make it is waived. On the whole, I am satisfied that an omission to challenge is a waiver of all objection to a juror, in like manner as an omission to plead a defense is a waiver of the defense."

In Bennett v. Matthews, 40 How., 428, the court held that an omission to challenge an alien, who was made by statute incompetent to sit, was waived even though the party did not learn of the incompetency until after the verdict was rendered. Id., 433-4.

In Mayor v. Mason, 4 E. D. Smith, 142, tlie court held that an irregularity in summoning a jury was ground of challenge to the array, but an objection made after the jury were empaneled and sworn came too late. Salisbury v. McClaskey, 26 Hun, 262; Ayres v. Village of Hammondsport, 11 N. Y. State Rep., 706.

No injustice has been shown or that defendant has been prejudiced. The objection now is therefore without merit. This conclusion results in the affirmance of the judgment appealed from irrespective of whether or not the jury was summoned according to law, but as it is essential that the question be settled for future cases, we have examined it, and reach the conclusion that no ir regularity was committed in summoning the jury. The munici pal court was created to remedy abuses which had sprung up under the old system; the practice as it existed in justice's courts was retained so far as it was applicable to the proposed change, but the court as finally established differed in essential respects from courts of justice of the peace. It consists of two judges, who are required to be counselors of the supreme court; it has a clerk and is furnished with a seal, its jurisdiction is enlarged, and when the complaint is verified and served, judgment is permitted without farther proof, if the defendant makes default, and the court is vested with power to open defaults; the judges are paid a salary and are not permitted to take fees, which the clerk is required to collect and pay over to the treasurer of the city. Jus tices courts for the city were abolished. The purpose was to create a local court upon a plan different from the old courts and entirely independent of them, except so far as certain methods of procedure were made applicable. The language of the act providing the method of procedure reads: "Shall be the same as are now provided by law for justice's courts, except," etc., § 6.

This provision did not infringe upon the constitution, § 17, article 3, which declares that "no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting it in such act."

As was said by Allen, J., in People v. Banks, 67 N. Y., 575, "We have had occasion to consider this provision, and were of the opinion that it did not prohibit the subjecting a matter of special legislation to some provisions of the general statutes of the state, regulating the procedure. By such a reference

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the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared or burden imposed by the special statute, but the enforcement of the right or duty, and the final imposition of the burden, are directed to be in the form and by the procedure given by the other and general laws of the state. Reference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law." People v. Hoyt, 7 Hun, 39.

The act is, therefore, a constitutional enactment. While the act referred to is not incorporated into the special statute, yet it