
    John A. Cook, Resp’t, v. Judiah H. Matteson, App’lt.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed October 30, 1890.)
    
    Pleading—Motion to majke 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 amexided 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 As the amended answer superseded the original and the parties appeared by consent and argued the motion, and the order was to make the amended answer more definite, the court must now treat it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 It will not be presumed that the court heard an argument and made an order affecting a pleading which had been superseded and was of no vitality, especially when the amended answer was referred to in terms, and was then the answer in the case.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 services in selling the land, plaintiff to become a part owner thereof.

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. N. 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  