
    Joseph Spitz, Respondent, v. The New York Taxicab Company, Appellant.
    (Supreme Court, Appellate Term,
    March, 1909.)
    Municipal Courts — Procedure; Pleading; Complaint — Sufficiency-Effect of bill of particulars; Demurrer — To oral complaint: Judgments— Interlocutory judgment on demurrer.
    The provision of section 145 (2) of the Municipal Court Act of the city of New York, that a demurrer to a written complaint must be in writing, is not in derogation of the preceding declaration in said section that pleadings, including demurrers, may be oral; and a written demurrer may be interposed to an oral complaint.
    The words “ Complaint Personal Injuries,” etc., indorsed upon a summons issued by the Municipal 'Court of the city of New York, do not amount to a plain and concise statement of facts constituting a cause of action; and the service, eight days after joinder of issue, of a bill of particulars creates no issue of fact not theretofore tendered defendant; and plaintiff, upon the filing of a written demurrer to such complaint, should have been allowed to amend under section (4) of the Municipal Court Act.
    Where plaintiff entered a paper styled “Interlocutory judgment on demurrer ” which had rather the incidents of an order than a judgment, but no point or contention based upon the discrepancy was raised on appeal from the so-called interlocutory judgment, it will be presumed that there was such a judgment.
    Dayton, J. dissented.
    Appeal by the defendant from an interlocutory j udgment of the Municipal Oourt of the city of New York, third district, borough of Manhattan, rendered in favor of the plaintiff.
    Lewis D. Mooney, for appellant.
    M. Strassman, .for respondent.
   MacLean, J.

TJpon November 2, 1908, the return day of a free summons, indorsed: “ Complaint Personal Injuries,” etc., the defendant interposed the written demurrer: “ The complaint does not state facts sufficient to constitute a cause of action.” This, on November thirtieth, the learned trial justice disallowed, with ten dollars costs, because, as he opined, Section 145, Sub-div. 2 of the Municipal Court Act allows demurrers only where there is a written complaint.” This was error.

That subdivision of section 145 does indeed provide that a demurrer to a written complaint must be in writing; but this is no more in derogation of the preceding declaration in the same section that pleadings, including demurrers, in the Municipal Court may be oral or written, than is the requirement that a pleading subsequent to a verified pleading must commonly be verified. The court should have deemed the demurrer well founded and allowed the plaintiff, not the defendant, to amend. Subd. 4. The words indorsed upon the summons did not amount to a statement, plain, concise or otherwise, of facts constituting a cause of action. Nor were they helped out by the service, eight days after the joinder of issue, of a bill of particulars which could not create an issue of fact not theretofore tendered the defendant.

What was entered by the plaintiff upon the decision of the learned trial justice and styled Interlocutory judgment on demurrer ” has rather the incidents of an order than of a judgment; but, as neither point nor contention is based on that discrepancy, it may be disregarded or overlooked on presumption. Cawley v. Costello, 15 Hun, 303.

Judgment reversed, with costs to the appellant, but with leave to the respondent to plead anew upon payment of costs and disbursements.

Gildersleeve, J., concurs.

Dayton, J. (dissenting).

Plaintiff, a street sweeper, upon a free summons brought this action by an oral complaint, indorsed upon the summons, as for “ Personal Injuries,” etc. The defendant, as appears from the indorsements on the summons, on the return day (November 2, 1908), made a “ demand,” and November tenth was set down as the date for the “ answer.” On November sixth a bill of particulars, stating the date, hour and place of the accident, also setting forth the details of his serious injuries, his loss of employment between specified dates, and the expense of his medical attendance, was filed. No answer was presented on November tenth, when the case was set down for trial; and various adjournments were thereafter had till November twenty-fourth, when the defendant demurred to the complaint for insufficiency. As far as the record shows, since on the return day the only step' taken by the defendant was to make a demand,” issue was not joined until the demurrer was interposed on November twenty-fourth. But on November sixth defendant was fully advised as to plaintiff’s cause of action by the bill of particulars, which was an amplification of the complaint; and, on the day upon which the answer was to be entered, it could have been entered, or, if in writing, prepared and filed. It seems, however, that, having secured the information necessary before answering, it delayed nearly three weeks and then demurred. While it has been held that, when any complaint in a Municipal Court is tested for insufficiency, it is governed by the same rules as are applied to complaints in the Supreme Court (State Board of Pharmacy v. Davey, 56 Misc. Rep. 568); nevertheless, I do not think the record in this ease entitles the defendant to the benefit of that authority. The manifest object of a complaint is to furnish the defendant with sufficient information to enable him to plead intelligently. Here the defendant had that information before the answer was due. In the circumstances, to compel plaintiff to pay costs ás a condition of amendment, or, in the event of his presumable inability to make such payment, thus remitting him to another action wherein those costs could be offset against his demand, would seem to he unwarranted and unjust.

The interlocutory judgment should be affirmed, with costs.

Judgment reversed, with costs to appellant, with leave to respondent to plead anew upon payment of costs and disbursements.  