
    Peter Daly, Plaintiff, v. Charles Wolaneck, Defendant.
    (Supreme Court, New York Special Term,
    October, 1899.)
    Pleading — Assault and false imprisonment may be joined, but one of them must be alleged as in chief.
    Where the nature of the action is conceded, allegations of assault and also of false imprisonment may be joined in the statement of one cause of action, but where the complaint does not disclose the theory of the action, the plaintiff may be compelled to make his complaint more definite and certain, by numbering his allegations, to the end that it may be. possible to determine which are set forth in chief and which in aggravation.
    Motion to make the complaint more definite and certain by setting forth and numbering statement of alleged facts constituting alleged causes of action.
    The complaint alleged: ■'
    “I. That on the 18th day of July, 1898, the defendant assaulted the plaintiff ” and “ gave him into the custody of a policeman and forced and compelled him to go to a police station, and then caused him to be imprisoned upon a false charge then made by the defendant that the plaintiff had been guilty of a misdemeanor, and caused him to be imprisoned, until he was afterward brought in custody before one of the city magistrates of the city of Yew York, and the defendant then again charged him with the said offense; and said magistrate dismissed the said charge, and caused him to be discharged out of custody.”
    The complaint further alleged:
    “ II. That by reason of the premises the plaintiff was injured in the sum of $2,500.”
    Charles Stein, for motion.
    Daniel Daly, opposed.
   G-ieokebich, J.

It is true that the allegations of assault and false imprisonment may, under the authorities, be joined in the statement of one cause of action where the nature of the action is conceded, but where the plaintiff fails to disclose the theory of his action it is impossible to say which allegations are set forth in chief and which in aggravation; hence, to permit the pleading to stand would be to place the defendant in a state of hopeless uncertainty as to the issue to be met. The plaintiff’s brief is so equivocally drawn that no recital as to his position could be made in the order for the purpose of an estoppel of record, and, accordingly, he should be compelled to define his - case. See Blake v. Barnes, 9 N. Y. Supp. 933; 30 N. Y. St. Repr. 299. The motion to require the plaintiff to separately state and number the complaint as stated in the notice should, therefore, be granted, unless the plaintiff within five days after the entry of the order stipulate that he intends and desires to state but a single cause of action, specifying which allegations are set forth in chief and which -in aggravation. Ten dollars costs to the defendant.

Ordered accordingly.  