
    The Mutual Life Insurance Company of New York, Respondent, v. Robert A. Granniss, Appellant.
    First Department,
    April 5, 1907.
    Pleading—when motion for bill of particulars may not be united with a motion to make the complaint more definite and certain — when complaint states a single cause of action for general damages to corporation by wrongful acts or negligence of officer.
    Motions to make a complaint more definite and certain or for a bill of particulars in the alternative cannot be united, because the first may only be made before and the latter ordinarily after answer unless necessary to enable the defendant to plead.
    
      On a motion to make a complaint more definite and certain the court may require that allegations respecting' the nature of the charge be made definite; but neither particulars nor circumstances of time or place should be required. A motion to make a complaint more definite and certain is to enable a party before pleading to ascertain the charges made against him with sufficient definiteness to enable him to plead.
    A complaint in an action against the vice-president and trustee of an insurance company which alleges that the defendant was required to preserve the assets of the company and was not authorized to make unlawful or improvident use of its funds, etc., and that it being his duty to examine and approve or disapprove the vouchers for disbursements, he knowingly or negligently approved and recommended the payment of a large number of bills and vouchers which were not proper charges against the company to its damage, states a cause of action for general damage for wrongful acts or negligence as agent of the company. The amounts lost through such wrongful acts or negligence are evidence of the damage but not specifically recoverable, and the pleading need not set forth the dates or. amounts of the payments or the facts in respect to each.
    
      It seems, that such information, if necessary, should be obtained by a bill of particulars after issue joined.
    A complaint against such vice-president and trustee which alleges that the defendant, acting in concert with other officers of the company and in disregard of his duty to preserve the property from waste, approved or participated in paying political campaign contributions wholly unauthorized, states a cause of action both for negligence and for wrongful acts as an agent of the company, and the plaintiff should not be required to make an election between the wrongs by making the complaint more definite and certain.
    The above considerations also apply to a count alleging that the defendant with other officers, pursuant to a conspiracy, established a “confidential fund,” which they disbursed without authority for unlawful purposes, etc.
    Appeal by the defendant, Robert A. Granniss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of October, 1906, denying, without prejudice to an application for a bill of particulars after issue joined, the defendant’s motion, made before answering the complaint, to have the complaint made more- definite and certain with respect to the first, second and fifth causes of action, or, in the alternative, for a bill of particulars concerning said causes of action.
    
      Charles J. Fay [Charles D. Miller with him on the brief], for the appellant.
    
      Joseph H. Choate [James McKeen and Joseph H. Choate, Jr., with him on the brief], for the respondent.
   Laughlin, J.:

The motion to make the complaint more definite and certain or, in the alternative, for a hill of particulars, were improperly joined, because one may only be made before and the other ordinarily only after pleading. Moreover, the motion having been made before .defendant answered and befóre it was rendered certain that the material allegations of the complaint would be controverted, and a bill of particulars not having been shown to be necessary to enable defendant to plead, it was premature in so far as it demands a bill of particulars, and was, therefore, in that regard properly denied without prejudice to renewal after issue joined. (American Credit Indemnity Co. v. Bondy, 17 App. Div. 328.) The controlling consideration in deciding whether a complaint should be made more definite and certain is whether it contains a plain, and concise statement of the facts constituting the cause of action as required by section 481 of the Code of Civil Procedure, and is prescribed in section 546 of the same Code, which authorizes the court to requires pleading, the allegations of which are “so indefinite or uncertain that- the precise meaning or application thereof is not apjiarent,” to be made definite and certain. The court may require that allegations with respect to the nature oí the charge e made definite; but neither particulars nor circumstances of time and place should be required. (Tilton v. Beecher, 59 N. Y. 176, 183; People v. Tweed, 63 id. 194.) The remedy is prescribed to enable a party before pleading to ascertain the charge made against him with sufficient definiteness . to enable him to properly plead.

The action is at law to recover damages for a breach or neglect of duty of the defendant as a trustee of plaintiff, a domestic life insurance corporation, holding office continuously,' under six successive elections, from the 1st day of June, 1885, to the 28th day of March, 1906, and as a vice-president of plaintiff from the -16th day of December, 1885, to said 28th day of March, 1906.

Plaintiff alleges, for its first cause of action, that it was "the duty of the defendant as trustee and vice-president, among other things, to preserve the assets of the company from Waste, to neither authorize nor make, nor hnowingly’or negligently permit to b¿ made any unlawful or improvident use of its funds, and to be diligent, vigilant and faithful in the discharge of liis duties; that, as vice-president, it was his duty to examine and approve or disapprove,, in writing, bills and vouchers for disbursements, and that he knowingly or negligently approved and recommended for payment a large number of bills and vouchers which were not proper charges against the company, to its damage in the sum of $200,000. These facts plainly show a cause of action for general damages for wrongful acts or negligence as agent of the company; and amounts lost by the company through such wrongful acts or negligence are evidence of the damages, but are not specifically recoverable. (Mutual Life Ins. Co. v. McCurdy, No. 1,118 App. Div. 815, argued and decided herewith.) It was not necessary, therefore, to allege the dates or amounts of the payments, or the facts with respect to each. That information may, in a proper case, be obtained by a motion for a bill of particulars after issue joined.

Plaintiff, for its second cause of action, further alleges that in the years 1896, 1900 and 1904, defendant, acting in concert with certain other officers of the company and in disregard of his duty to plaintiff to preserve its property from waste, approved of and participated in paying out $92,000 of its funds for political campaign contributions, which were wholly unauthorized. These allegations show a cause of action both for mere negligence and for wrongful acts as agent of the company; and as a cause of action upon either theory might arise on those facts, plaintiff should not be required at this time, at least, to make an election by making the complaint more definite and certain. (Mutual Life Ins. Co. v. McCurdy, No. 1, supra)

In the fifth count plaintiff further alleges that during the period from January, 1900, until the close of the year 1905, defendant acted in concert with certain officers of the company, who, without authority and pursuant to a preconcerted arrangement, established and maintained with plaintiff’s moneys a “ Confidential Fund which they disbursed without authority and for unlawful purposes; ■ that plaintiff knew or should have known these facts and that acting in concert with them he approved of and participated in the establishment, maintenance and disbursement of said fund, and neglected to perform his duty to prevent or attempt to prevent such waste of funds of the company, or to give notice to plaintiff’s board of trustees and to its policyholders, to its damage in the sum of $600,000. The reason already assigned for denying the motion as to the second cause of action is controlling here and leads to a like decision.

It follows that the order should be affirmed, with ten dollars Costs and disbursements.

Patterson, P. J„ Ingraham, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  