
    Andrew W. Easling, Plaintiff, v. Walter A. Naylon, Defendant.
    (Supreme Court, Monroe Special Term,
    September, 1916.)
    Pleading — when plaintiff required to make complaint more definite and certain — negligence.
    Plaintiff will be required to make his complaint more definite and certain where in 'an action for negligence for an assault by defendant’s servant he alleges that he was “ willfully ” struck by the servant, thus stating a fact inconsistent with his theory of liability.
    (Syllabus by the Court.)
    Motion to make complaint more definite and certain and to compel an election.
    Hubbell, Taylor, Goodwin & Moser, for motion
    James L. Brewer, opposed.
   Rodenbeck, J.

Plaintiff’s complaint is evidently framed upon the theory of negligence. Allegations of negligence occur throughout the complaint and the allegation with reference to the service of the notice under the Workmen’s Compensation Act particularly emphasizes the nature of the action. The plaintiff howrever has inadvertently used the word "willfully" in characterizing the act of defendant’s servant in striking him. Where the servant acts willfully under the circumstances of this case there can be no liability so far as the employer is concerned. The plaintiff might have brought this action upon the theory of assault and battery (Collins v. Butler, 179 N. Y. 156), or upon the theory of negligence (Sharp v. Erie R. R. Co., 184 id. 100), but to permit a complaint to stand which mingles a theory of assault and negligence would result in confusion. Magar v. Hammond, 183 N. Y. 387. The facts set forth in the complaint arise out of one tortious act and the plaintiff is therefore permitted to allege the facts constituting his cause of action including' the fact that he had been struck by defendant’s servant. If the word willfully” is' stricken from the complaint it will then present' a cause of action based solely upon negligence. Rounds v. Delaware, L. & W. R. R. Co., 64 N. Y. 129. The plaintiff may serve an amended complaint eliminating the word “ willfully ” or elect between an action for negligence and an action for assault.

Ordered accordingly.  