
    Hyman Samelson, Appellant, v. Carrie Mayer, Doing Business under the Name of D. A. Mayer Company, Respondent.
    First Department,
    June 3, 1910.
    Municipal Court — sufficiency o"f oral complaint — appeal — defective record — practice where defendant questions sufficiency of oral . complaint.
    The sufficiency of an oral complaint in the Municipal Court cannot tie decided-on appeal.where the record does not show the exact.provisions of the-complaint as orally stated. The record.is defective if it merely show that by the docket and' the summons as indorsed the action was for labor performed and materials' . furnished.” .- ’
    • It seénis, that a complaint in said words is insufficient, -in that it does sot state ■ that the services were rendered and the material furnished at the defendant’s request, or show whether the plaintiff is suing for- an agreed price, or for. a ■ quantum, meruit;. . . - . •
    An oral pleading in the Municipal Court must state facts sufficient . to constitute a cause of action, though they .need not be set forth with the detail "required in a written complaint.
    Deficiencies in the oral pleading cannot. be supplied by a bill of particulars.
    The proper practice where .there is an, oral complaint is as follows : The defend; ■ ant if he deem the- complaint insufficient, must raise- the issue by demurrer before answer,and the complaint should then be taken down, at -length. If.. th e-demurrer be overruled the defendant, may answer, and if sustained the plaintiff should be allowed to amend. The defendant cannot answer and delay his motion to dismiss on the grounds of insufficiency until the'causeis called for trial.
    Appeal by the plaintiff, Hyman Samelson, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 29th day of December, 1909, reversing a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 29'tli day of June, 1909. .
    
      Julius Blumofe, for the appellant.
    
      M. Spencer Bevins, for the respondent.
   Dowling, J.:

This action was commenced by the issuance of a summons in the Municipal Court of the city of Hew York, sixth district, on May 11, 1909. Hpon the return day, May twenty-first, issue was joined and the plaintiff made his oral complaint, to which the defendant orally answered and demanded á bill of particulars. Thereafter various adjournments, were had,’and in the interim a written bill of particulars of the plaintiff’s cause of action was filed. On June twenty-first the cause came, on for trial, whereupon defendant’s counsel moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action ; -to this the plaintiff’s counsel made reply that there was a bill of. particulars filed and that the summons was indorsed “ Labor performed and materials furnished,” and that he did not know what else the defendants counsel wanted. The court thereupon denied the motion. Plaintiff recovered a judgment .of $145.60, which, upon appeal to the Appellate Term (65 Misc. Rep. 518), was reversed and from such determination the plaintiff appeals to this court.. The question sought to be presented by this appeal is the sufficiency of the oral complaint stated on plaintiff’s behalf. Unfortunately, that . question cannot be raised in this case for the record does not purport to show the exact provisions of the complaint, as orally stated. All that -appears in the record is the statement of the substance of the pleading indorsed upon the summons and entered in the docket book of the court’ pursuant to section 145 of .the Municipal Court Act (Laws of 1902, chap; 580, as. amd. by Laws of 1908, chap. 495). This is not sufficient to raise the question as tti whether or not the complaint was sufficient. ' •

. It has been held in Mqisch v. City of New York (134 App. Div. 2.01) that the words “ damages to personal property ” written on a sheef paper .attached to. the summons 'after the printed word “ complaint’’ constituted a sufficient compliance with such section, as to the indorsement of the substance of the- complaint "upon the summons; but this is far from holding that such a statement of the plaintiff’s cause of action, would be sufficient as a complaint.

It is obvious in the case át bar that if the only, complaint stated by the. plaintiff was in the form in which if was condensed by*the court, viz., “work, labor and services rendered and materials furnished,” the amount having been stated in the summons at $129.90, the oral complaint would have been insufficient-as it did not show the rendition of the services and -the furnishing of the materials at the defendant’s request; nor- did it show whether plaintiff was suing for an- agreed price, or for the reasonable value of the services and materials. . . .... ■ - .-

But if the defendant desired to test the sufficiency of. the complaint, heshould have had the oral pleading in its entirety as stated by plaintiff entered in the record so that the question might be projjerly presented;

It is apparent that .in providing for written demurrers to written pleadings it was sought .to assimilate the practice in the Municipal Court to that in the Supreme Court whenever a written complaint had been sérved. And the riglit of the court" to entertain a motion to dismiss the .complaint where it did not .state facts sufficient to constitute a cause of action has been- upheld in Rogers v. Fine (49 Misc. Rep. 633) as within the inherent .power of'the court) it being treated, in effect, as an oral demurrer, and when granted the'' plain-tiff-wa's to be permitted to amend his pleadings.

It has, however, been the consistent purpose of the Legislature to preserve oral pleadings in the Municipal Court for the better protection of the rights of litigants whose claims are small in amount or who cannot afford to.pay for. legal services in their prosecution. This, of course, .does not mean that a complaint orally presented must not state facts sufficient to constitute a good' cause of action. For while it need not be set forth with all the ■ detail which good pleading might suggest'in a written complaint, it still must contain all the essentials to constitute a good cause of action and the deficiencies in an oral pleading cannot be supplied by a bill of particulars •thereafter furnished. (Spitz v. N. Y. Taxicab Co., 62 Misc. Rep. 492.) But the orderly administration of justice requires that if the oral complaint is deemed insufficient by the defendant, he must raise that question when the pleading is stated, and he cannot interpose an. answer and wait for weeks or months until the trial is about to be reached and then move to dismiss upon the ground that the complaint does not state facts sufficient to constitute a Cause of action, when the record does not fully or completely- disclose what complaint the plaintiff actually stated orally.

, If, upon the return day, upon the oral statement of plaintiff’s cause of action, defendant deems the same insufficient he should raise the question at.once by demurrer, before pleading to the plaintiff’s complaint ; the complaint should then be taken down at length by the stenographer and form párt of the record of the case; If the court overrules the demurrer, the defendant may then plead. If the ■ court sustains the demurrer, the plaintiff would then be given leave to amend his complaint. Such a course of procedure will prevent undue delay, protect plaintiffs from an erroneous or an incomplete indorsement of the substance Of their complaint, and, at the same, time, insure the preservation to defendants of any rights they may have if the trial proceeds upon a defective pleading.'

The determination of the Appellate Term is, therefore, reversed and the judgment of the Municipal Court reinstated, with costs to .the appellant in all courts.

•Ingraham, P. J., McLaughlin,. Clarke ■ and Scott, JJ., concurred.

Determination reversed and judgment of Municipal Court affirmed, with costs in this court and in the courts below.  