Brinkerhoff v. Perry

59 How. Pr. 155

• Court: New York Supreme Court
• Decided: May 15, 1880
• Status: Published

Opinion

Donohue, J. —

The general term on the former motion have reviewed the question.

* I am bound to suppose they • decided it within their power, and will do so on this appeal.

Motion for stay granted, with costs.

This same case was before the general term, first department, and decided Eebruary, 1880. It has not been previously reported. The case as there presented was as follows:

Appeal from an order of special term denying defendant’s application to compel plaintiff to make his complaint more definite and certain.

Plaintiff brought this action against defendant who was formerly his wife. The (orignal) complaint alleged in general terms that about seventeen years ago he transferred to defendant, while she was still his wife, “ all his property;” “a large fortune;” “ valuable real estate,” “by deed and otherwise,” “ the same being valued at said date at the sum of eighty thousand dollars,” and demanded an accounting and the return of his property. Plaintiff claimed in his complaint that he was an inebriate at the time of the transfer, and that he was unduly influenced by his said wife and her father, one George S. Perry.

The special term having denied an application for particulars, and also a motion to make the complaint more definite and certain, defendant appealed from the order so denying relief, and urged that she was entitled to one remedy or the other.

The general term required plaintiff to amend his complaint.

Cha/uncey B. Ripley, for appellant.

George W. Wilson, for respondent.

Per Curiam.— We think the order should, in this case, be modified, by requiring the plaintiff to state in the complaint the specific real estate which he claims to have conveyed to the defendant, and the kind and quantity of personal property, if he claims to have conveyed any such property to her.

Ordered accordingly.

Noah Davis, P. J., and Brady and Barrett, JJ.