Daly v. Wolaneck

29 Misc. 162, 60 N.Y.S. 162

• Court: New York Supreme Court
• Decided: October 15, 1899
• Status: Published

Opinion

G-ieokebich, J.

It is true that the allegations of assault and false imprisonment may, under the authorities, be joined in the statement of one cause of action where the nature of the action is conceded, but where the plaintiff fails to disclose the theory of his action it is impossible to say which allegations are set forth in chief and which in aggravation; hence, to permit the pleading to stand would be to place the defendant in a state of hopeless uncertainty as to the issue to be met. The plaintiff’s brief is so equivocally drawn that no recital as to his position could be made in the order for the purpose of an estoppel of record, and, accordingly, he should be compelled to define his - case. See Blake v. Barnes, 9 N. Y. Supp. 933; 30 N. Y. St. Repr. 299. The motion to require the plaintiff to separately state and number the complaint as stated in the notice should, therefore, be granted, unless the plaintiff within five days after the entry of the order stipulate that he intends and desires to state but a single cause of action, specifying which allegations are set forth in chief and which -in aggravation. Ten dollars costs to the defendant.

Ordered accordingly.