
    Stanley D. Pearce and Manton Davis, Doing Business as Pearce & Davis, Copartners, Respondents, v. Elizabeth D. Weidemeyer, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Pleading — Motions relating to pleadings — Motions to make more definite and certain — Allegations sufficiently certain — Unnecessary allegations.
    Where, in an action to recover upon a foreign judgment, defendant sets up that she retained plaintiffs to advise her whether she could legally sell certain mortgaged personal property situated in another State; that it Avas agreed that, in ease they advised her that she could safely sell the property, they would assist her by giving their legal opinion to any proposed customer she might introduce to them; that they advised her that the sale was legal; that thereafter she introduced a proposed customer ready, willing and able to pay a certain amount for the property but that the plaintiffs refused to have any interview with the customer in consequence of which the customer believed that the sale was illegal and refused to purchase, an order that defendant make her counterclaim more definite and certain, by alleging: (1) That the pro-' posed sale was legal under the laws of the State where the property was situated; (2) whether the proposed customer was ready, able and willing to buy the property free and clear of all liens or otherwise, and (3) by stating in detail the reasons which caused the proposed customer to refuse to purchase the property, will be reversed upon the ground that the reasons which caused the proposed customer to refuse to complete his sale were already sufficiently stated, and that the other allegations required by the order were irrelevant.
    Appeal by the defendant from an order of the Special Term of the City Court of the city of New York directing that the counterclaim contained in defendant’s answer be made more definite and certain.
    Albert I. Sire, for appellant.
    Charles D. Donohue, for respondents.
   Blanchard, J.

The plaintiffs brought action upon a foreign judgment and the defendant set up in her answer a counterclaim stating that she retained the plaintiffs to advise her whether she could legally sell certain mortgaged personal property situated in Missouri; that it was agreed between the plaintiffs and the defendant that, in case they advised her that she could safely sell the property, they would assist her in selling it by imparting their legal opinion to any proposed customer the defendant might introduce to them; that the plaintiffs advised defendant that the sale was legal and that thereafter the defendant introduced a proposed customer, ready, willing and able to pay $7,000 for the property, but that the plaintiffs refused to have any interview with him, with the result that the customer believed that the sale was illegal and consequently refused to purchase. By an order of the City Court, the defendant was directed to make her counterclaim more definite and certain by alleging that the proposed sale was legal under the laws of Missouri, by alleging whether the proposed customer was ready, able and willing to buy the property free and clear of all liens, or otherwise, and by stating in detail the reasons-which caused the proposed customer to refuse to purchase the property. Appeal is taken from this order. The legality of the proposed sale is not relevant to the cause of action set up in the counterclaim. The cause of action there alleged is not a contract of sale but a contract to give a legal opinion, and the correctness of the opinion is irrelevant to the issue. The direction that the defendant state whether the proposed customer was ready, willing and able to buy the property free and clear of all liens requires an unnecessary particularity in the counterclaim unless, as the learned court below apparently believed, the legality of a sale free from liens was relevant to the cause of action. From what has already been stated, it is clear that this fact is irrelevant. The reasons which caused the proposed customer to refuse to complete his sale have already been sufficiently stated in the counterclaim, and greater detail in stating these reasons seems unnecessary in pleading.

For these reasons, therefore, the order must be reversed, with ten dollars costs and disbursements.

Gildebsleeve and Daytokt, JL, concur.

Order reversed, with ten dollars costs and disbursements,  