Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C., 464.

The defendant moved for an order requiring the plaintiff to + make the complaint more definite and certain by specifying and pointing out when, where, how, under what circumstances, and in what way, manner and particulars the alleged damage to the plaintiffs' goods was incurred, and in what the said damage consisted, and in what the alleged negligence and misbehavior of the defendant referred to in the fourth article of the complaint consisted.

The Special Term, in denying the motion, rendered the following opinion:

"This motion must be denied for the reason that it is well established that negligence may be charged in general terms, and while under the practice in some States, if a more definite statement of facts is desired, a motion to the court to make the complaint more specific, is proper, under our practice, it is only where the precise nature of the charge is not apparent that such an application is proper to make the complaint more definite and certain. But where the particulars or circumstances of time or place, or, as in this case, where defendant desires to have specified where, how, and under what circumstances, or the particulars of the alleged damage, the proper practice is to demand a bill of particulars, and on that being refused, to make a motion to obtain it (Tilton v. Beecher, 59 N. Y., 176, and pp. 183 and 184)."

The General Term reversed the order and granted the motion.

BRADY, J. The defendants are alleged to be common carriers for hire between London, in England, and this city. The allegation is that on June 22, 1887, the defendant undertook to transport to New York for hire, by its vessel called the "Ludgate Hill," ninety cases of furs, the property of the plaintiffs, and to deliver the same safely and in good order to the plaintiffs at the city of New York; for which service the defendant was paid; and then that "the defendant so negligently and carelessly misbehaved itself in transporting the fur that the plaintiff, by reason thereof, sustained damage in the amount stated."

The defendant insists that this is a very indefinite and uncer

5

6

7

Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C., 464.

It

8 tain statement of the cause of action, and it seems to be so. is a natural logical sequence that if defendant carelessly and negligently misbehaved itself it behaved itself, and, it must be assumed, well behaved itself.

9

This must be the result. This view, which is not intended to be hypercritical, is only given for the purpose of demonstrating the uncertain and indefinite allegation of the cause of injury.

It is not necessary to consider the authorities upon a motion of this character, which create, when put in juxtaposition some confusion, involving, to some extent, rules applicable to bills of particulars, for the reason, if none existed, that the Code requires by section 481 a plain and concise statement of facts constituting each cause of action, without unnecessary repetition. And the Court of Appeals in Olcott v. Carroll, 39 N. Y., 436, said in reference to the old Code, the provisions in which are similar to those contained in the Code of Civil Procedure: "When the allegations in a pleading are so indefinite and uncertain that the express nature of the charge is not apparent, the court may require the pleading to be made definite and certain by amend10 ment." Here the plaintiffs' right of action depends on the alleged negligence of the defendant, and, giving the broadest and most liberal interpretation to the allegations in the complaint on that subject, there is no suggestion of any fact showing the character of the negligence, whether by improper stowage, or careless handling, or negligent exposure, or of any one of the numerous acts, omissions, and circumstances by which negligence would be made apparent. The statement is, that the goods were so shipped and so negligently transported as to be damaged. This is neither a plain nor concise statement of facts, and the precise nature of the charge is not apparent.

11

Whether the defendant was guilty of negligence or carelessness is a conclusion of law dependent upon facts which must be proved. There should be at least some general statement of the cause of the damage, beyond the mere statement of neglect and carelessness. Some confusion has crept into the consideration of this question, by the supposed effect upon it of the case of Tilton v. Beecher, 59 N. Y., 176. The learned justice in writing the opinion in that case, referring to section 160 of the old Code,

Ottman v. Fletcher, 23 Abb. N. C., 430.

the provisions of which were similar to those of section 546 of 12 our present Code, said: "It will be observed that it is only where the precise nature of the charge is not apparent that an application will be made under this section. It 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 par ticulars or circumstances of the time and place. For that purpose, a different proceeding was pointed out, and from that there was no uncertainty and indefiniteness in respect to the nature of the charge made against the defendant."

Indeed an examination of that case shows that the charge made was quite definite and certain. That case, and cases kindred to it, establish the proposition that in an action of or for relief, if the charge made be definite and certain, an application for a bill of particulars may be granted. But it in no wise limits, controls or affects the statutory right secured by the provisions of the Code, to have a complaint made so definite and certain that the nature of the charge shall be stated.

13

The object is to advise the defendant of the claim with such definiteness as to enable him to prepare his defence. This 14 would be required in all other classes of cases and should be here. For these reasons, the order appealed from is reversed, and the motion granted with costs.

DANIELS, J., concurred.

BARTLETT, J., concurred in the result.

Order reversed.

OTTMAN v. FLETCHER.

New York Superior Court, Special Term, 1889.

[Reported in 23 Abb. N. C., 430.]

1. Under Code Civ. Pro., § 481, a defendant is entitled to be informed by the complaint of the facts constituting the plaintiff's cause of action, and it is not an answer to a motion to make a complaint more definite and certain that the defendant has become acquainted with all the facts upon which plaintiff's claim is founded in another action relating to the same subject matter.

1

Ottman v. Fletcher, 23 Abb. N. C., 430.

2. A complaint alleging a modification of a contract will be required to give the substance or full terms of the alleged modification, but not to state the time and place and whether or not by a writing.

The complaint, after alleging that a contract was made between plaintiff and one Caffee for the manufacture by plaintiff and the delivery to said Caffee of a certain number of advertising and playing cards, a certain sum to be paid down on the making of the contract, and the balance to be paid on delivery of the cards, stated that the original contract was modified to the extent that a less number of cards should be delivered than was originally provided for. Paragraph 5, among other things, alleged that the defendant on the day said contract was made, 2 guaranteed in writing the payment" under said contract.

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66

Defendant moved to make the complaint more definite and certain by stating in what respect the contract alleged in the complaint was modified, whether such modification was in writing, the time and the place of such modification, the full terms of the same, and whether the words "said contract" in paragraph 5, referred to the original contract or to the modified

contract.

DUGRO, J. I think the complaint should be made more definite and certain by giving the substance or full terms of the alleged modification, and also by stating whether the words "said contract" in paragraph 5, refer to the original contract or to the same as modified. The precise meaning and the application of the allegations of the complaint are apparent, without a specification of the time and place of the alleged modification, or any statement as to whether this modification was in writing, and 4 therefore the defendant's motion, so far as it asks for information as to these particulars, should not be granted (See Tilton v. Beecher, 59 N. Y., 176). In Betts v. Bache (23 How. Pr., 197), it is held that it is not necessary in a pleading to state a contract within the Statute of Frauds to be in writing. As to the contention of plaintiff's counsel that the defendant is well aware of all the facts upon which the plaintiff's claim is founded, by reason of another action, etc., it is sufficient to say that the defendant is entitled to be informed by the complaint of the facts constituting

Blanchard v. Jefferson, 28 Abb. N. C., 236.

the plaintiff's cause of action (§ 481 Code Civ. Pro.). He may 5 have reason to know the nature of the plaintiff's claim aside from the pleadings, but it is his right to rely only upon that which appears in the complaint itself. An order in accordance with the above will be granted, without costs.

BLANCHARD v. JEFFERSON.

New York Supreme Court, General Term, First Dep., 1892.

[Reported in 28 Abb. N. C., 236.]

I. A complaint alleged that on the dissolution of a co-partnership between plaintiff and defendant, a balance was struck, and what was due the retiring partner was left by him with defendant, his co-partner, as a loan; and that the retiring partner was thereafter employed by the other on a salary; and that upon the amount due for the loan and salary, various sums had been paid to plaintiff, and that a specified balance remained due,-Held, that the complaint set forth not a single cause of action for an accounting, but two, namely, the loan and the claim for salary, which, not arising out of the same transaction, were distinct causes of action; and a motion to compel separate statements must be granted.

2. In stating such causes of action separately, it need not, however, be alleged what amount was paid upon each cause of action, or what was due upon each: but it is proper after stating the causes of action separately to plead the payments and balance due plaintiff as facts common to both causes.

Appeal from an order of the Special Term requiring plaintiffs 1 to make their complaint more definite and certain. The action was brought by Henry B. Blanchard and others against Susan Jefferson individually and as executrix.

The complaint alleged that the defendant and plaintiff's testator entered into a co-partnership in 1874, and that the co-partnership was continued until January, 1881, when it was dissolved by mutual consent, and upon the date of the dissolution the accounts between the co-partners were settled and balanced, and there was due the plaintiff's testator $14,651.92 from said