
    Morris Friedman and Samuel Yadkowsky, Appellants, v. Isaac Denousky and Jacob Troup, Respondents.
    Third Department,
    November 13, 1907.
    Pleading — when allegations of damage need nót be made more definite and certain. .
    The complaint in an action against a buyer for failing to accept and pay for goods ordered at stated prices, which alleges that by reason thereof the plaintiff suffered damage in a certain sum, should not be required to be made more definite and certain by stating whether the damages were based on the difference between the market and contract price at the time and place of delivery or upon the difference between the contract price and the amount realized by the plaintiff on a resale, etc.
    Under such complaint the court at trial can apply the correct rule of damages, if a breach of the contract be proved, without any amplification or amendment of the complaint. '
    
      ■ Appeal by the plaintiffs, hiorris Friedman and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 10th day of April, 1907, requiring the plaintiffs to make the complaint more definite and certain.
    The action is brought on a complaint alleging two causes of action, one on a check and the other to recover $125 damages for an alleged breach of contract on the part of the defendants in failing to accept and pay for certain bags and copper which they agreed to purchase from the plaintiffs at prices stated. The court on motion of the defendants has made an order requiring the plaintiffs to amend tlieir complaint “ so as to allege upon what grounds plaintiffs claim they were damaged in the sum of $125 by reason of the defendants’ failure to perform on their part the contract referred to in said complaint; and allege whether such damages are based upon the difference between the market price at the time and place of delivery and the contract price; or whether such damages are based upon the difference between the contract price of said goods and the amount realized upon a resale thereof, and, if sold, whether the whole or part of the said goods were sold, or whether the damages are' based upon and a recovery for the entire contract price of said goods.” From this order the plaintiffs appeal.
    
      Hubert L. Brown, for the appellants.
    
      E. Lewis and F. E. Lewis, for the respondents.
   Chester, J.:

The court was asked to make the order in question under its power to make the complaint more definite and certain, but that power cannot properly be exercised except' where the allegations of. the pleading are so indefinite or uncertain that the precise 'meaning or application thereof is not apparent. (Code Civ. Proc. § 546 ; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181.) An inspection of this pleading reveals no uncertainty or indefiniteness, and its meaning and application are clearly apparent. Indeed there is no substantial criticism of it except in respect to the question of damages. The allegations are that the defendants entered into an agreement with the plaintiffs for the purchase of a specified number and kind of bags and a stated number of pounds of light copper at agreed prices stated in the complaint, to be delivered on a day and place named, and to be paid for on delivery; that at the time and place named the plaintiffs delivered such goods to the defendants and demanded payment therefor; that the defendants refused to receive and accept the same, and refused to pay the plaintiffs the agreed price therefor, and that the defendants failed to perform the' contract upon their part, by reason of which the plaintiffs suffered damage in the sum of $125.

The court on the trial would have no difficulty in applying the correct rule of damages if the plaintiffs prove such a breach of contract as they allege without any amplification or amendment of the complaint.

We think the order was inadvertently .granted.

The order should be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the defendants granted leave to answer within twenty days upon the payment of such costs.

All concurred.

Order reversed, with ten dollars costs' and disbursements, and motion denied, with ten dollars costs, with leave to defendants to answer within twenty days upon payment of such costs.  