
    Edward P. Day, Appellant, v. Edward W. Day, Respondent. (Action No. 1.)
    
      Pleading — when it will he ordered to he made more definite —forgery and undue influence a species of fraud.
    
    An application, under section 546 of the Code of Civil Procedure, to have portions of a pleading made more definite and certain, will lie only when the precise meaning or application of the averments in question is not apparent. Forgery and undue influence each constitute a species of fraud.
    
      Appeal by the plaintiff, Edward P. Day, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of May, 1904, directing certain portions of the amended complaint to be made more definite and certain.
    
      J. Edward Swanstrom [Andrew Wilson with him on the brief], for the appellant.
    
      Elmer S. White, for the respondent.
   Jenks, J.:

Application lies, under section 546 of the Code of Civil Procedure, only when the precise meaning or application of the charges is not apparent. (See, too, Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181, 183; Tilton v. Beecher, 59 N. Y. 176, 183.) The criticism of the learned counsel for the respondent is that the pleader may intend to charge either forgery or fraud or undue influence. The order in effect directs an election between them.

But I think that the forgery may be regarded as a species of fraud. In People v. Marion (29 Mich. 31) Campbell, J., says: “ The principal criminal element in forgery consists in the fraudulent purpose, and the proofs of fraud must be substantially the same in criminal and civil cases.” (See, too, Commnonwealth v. Starr, 4 Allen, 301,304.) Undue influence is also recognized as a species of fraud. (Green v. Roworth, 113 N. Y. 462,470; Matter of Will of Smith, 95 id. 516.) I think that the precise meaning or application of the allegations are definite and certain, namely, that the defendant, by fraud, procured conveyances of realty from the plaintiff.

The order should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  