
    Emory M. Van Tassell, Respondent, v. Henry B. Beecher et al., Appellants.
    (New York Superior Court—General Term,
    April, 1894.)
    A party cannot be aggrieved by a pleading being left in a state as to which he will have a full remedy
    In an action against insurance brokers for a failure to procure insurance, the complaint alleged that defendants assumed and undertook to procure renewals of insurance for the plaintiff, and that they neglected and failed to do so. A motion to make the complaint more definite and certain was denied, the order reciting a stipulation by plaintiff’s counsel that plaintiff relied on the employment of defendants as insurance brokers, and their acceptance of the employment and undertaking as such to obtain insurance, and not upon an absolute agreement on their part to renew or obtain insurance. Held, no error, as defendants were sufficiently protected thereby.
    Appeal from an order denying motion to make the complaint more definite and certain.
    
      George Richards, for appellants.
    
      C. N. Bovee, for respondent.
   Sedgwick, Ch. J.

The defendants moved that the complaint be made more definite and certain. The order made and now appealed from is as follows: “ Plaintiff, by his said counsel, having stipulated in open court that plaintiff relies upon the employment of defendants as insurance brokers, and the acceptance of said employment by said defendants, and the undertaking of said defendants as insurance brokers to obtain insurance covering the plaintiff’s property described in the complaint, and not upon an absolute agreement upon the part of the defendants to renew the insurance, or to obtain insurance, it is hereby ordered. that said motion be denied.” The defendants were not aggrieved by this order, and are not entitled to succeed here.

It is admitted that the only contract set forth in the complaint is an absolute agreement by the defendants to procure insurance. The defendants are relieved from prosecution upon it by the plaintiff by the stipulation of the order that the plaintiff does not rely upon an absolute agreement upon the part of the defendants. This destroys the efficacy of the part of the complaint referred to, and the defendants need pay no further attention to it.

It is further agreed that if the allegations of that contract in the complaint be stricken out not enough is left to constitute any cause of action at all; that without the addition of the unverified stipulation contained in the order, which the defendants cannot take cognizance of, the complaint is hopelessly insufficient and obscure, and, in fact, demurrable.

It is not the office of a motion of this kind to determine whether a pleading is demurrable. But a party cannot be aggrieved by a pleading being left in a state as to which he will have a full remedy. In reality the uncertainty’complained of was the doubt as to whether plaintiff intended to proceed upon one possible cause of action or another. The order made settled that doubt The order can never be a part of the pleadings, but can be referred to, even upon the trial of an issue of law, to determine what the issue is.

The order should be affirmed, with ten dollars costs.

Dugro and Gildersleeve, JJ., concur.

Order affirmed, with ten dollars costs.  