
    Charles Yarslowitz, Respondent, v. Moris Bienenstock, Appellant.
    Second Department,
    November 18, 1910.
    ■ Practice — remedy where complaint for negligence fails to allege cause ' and nature of - injuries — issués hot raised by demurrer.
    Where-the complaint-in an-action to recover fór.personal injuries alleged-to have . .been caused by negligence fails to. set out the cause arid nature of the injuries, the remedy is by motion to make the complaint more definite and certain, not by demurrer.' • ’
    On demurrer to a coriiplaitit charging á master With negligence/-the question as to Whether an agent acting for the master as1 undisclosed principal is liable for the latter’s, acts-.is.not in issue.. .......'
    
      Appeal by the defendant, Moris Bienenstoqk, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 6th day of July, 1910, and entered in the office of the clerk of the county of Kings upon the' decision of the court rendered after a trial at the Kings County Special Term overruling 'the defendant’s demurrer to the complaint.
    
      John M. O'Neill, for the appellant.
    
      O liarles G. Ognibene, for the respondent.'
   Burr,' J.:

In drafting the complaint in this action plaintiff’s attorney seems to have overlooked the requirement of section 481 of the Code of Civil Procedure, to the effect that it must contain “ a, plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” This pleading contains thirteen separate, paragraphs. The greater portion of ten of' these may be disregarded for the.purposes of the demurrer which was interposed. The important ones are that defendant’s foreman hired plaintiff and put him to work upon a building on East Fourth street in the borough of Brooklyn, and that while so engaged through' various specified acts of negligence on the part of the defendant, he was injured. The physical cause of the injury is not stated, nor the nature of such injuries. The remedy for these omissions is a motion to make the complaint more definite and certain — not a demurrer. Counsel upon both sides have expended much energy in discussing the question whether- an agent of an undisclosed principal is liable for the latter’s tortious acts resulting in injury. The question is not raised by the demurrer, in this case,for the reason that the only negligence alleged in the complaint is the personal negligence of the defendant.

The interlocutory judgment overruling the demurrer. should be. affirmed, with costs, with leave to the defendant within twenty days after the entry of the order upon this decision to withdraw his demurrer and answer, upon payment of costs.

Hirschberg, P. J., Woodward, Rich and Carr, JJ., concurred.

Interlocutory judgment affirmed, with costs. ■  