Durant v. East River Electric Light Co.

City of New York Municipal Court

Durant v. East River Electric Light Co.

2 N.Y.S. 389, 18 N.Y. St. Rep. 934, 15 N.Y. Civ. Proc. R. 193, 1888 N.Y. Misc. LEXIS 196

DecidedSeptember 29, 1888

StatusPublished

This text of 2 N.Y.S. 389 (Durant v. East River Electric Light Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Durant v. East River Electric Light Co., 2 N.Y.S. 389, 18 N.Y. St. Rep. 934, 15 N.Y. Civ. Proc. R. 193, 1888 N.Y. Misc. LEXIS 196 (N.Y. Super. Ct. 1888).

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Opinion

McGown, J.,

(after stating the facts.) It does not appear from the pleadings herein that the lease referred to in the third paragraph of the answer has ever been recorded. The answer discloses the date of the lease, (January 4, 1888;) the parties thereto, (the plaintiffs and defendant herein;) the premises leased; and the chattels claimed under said lease, viz., the chattels named in the complaint. Ample provision is made in the Code for an inspection, and a copy of the lease, if required by the plaintiff, (Code Civil Proc. § 80S;) and also for its production upon the trial. The-claim of the defendant is set forth in his answer witli sufficient definiteness to enable the plaintiff to prepare for trial-. A party cannot obtain his opponent’s evidence by a motion to make his pleading more definite and certain, but, if entitled to, must seek it either under the provision of the Code, permitting an examination of the party before trial, or requiring the service of a bill of particulars. Agnew v. Railroad Co., 13 Civ. Proc. R. 25. A bill of particulars is the appropriate remedy where the party seeks to be fully apprised of the particulars or circumstances of time and place of the matters set forth in his opponent’s plead[391]*391ings. Tilton v. Beecher, 59 N. Y. 176. An order requiring a complaint to be made more definite and certain may involve a substantial right, and if so is appealable. Brownell v. Bank, 13 Wkly. Dig. 371. The order appealed from must be reversed, with costs.

Nehrbas, J., concurring.

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McGown, J.,

(after stating the facts.) It does not appear from the pleadings herein that the lease referred to in the third paragraph of the answer has ever been recorded. The answer discloses the date of the lease, (January 4, 1888;) the parties thereto, (the plaintiffs and defendant herein;) the premises leased; and the chattels claimed under said lease, viz., the chattels named in the complaint. Ample provision is made in the Code for an inspection, and a copy of the lease, if required by the plaintiff, (Code Civil Proc. § 80S;) and also for its production upon the trial. The-claim of the defendant is set forth in his answer witli sufficient definiteness to enable the plaintiff to prepare for trial-. A party cannot obtain his opponent’s evidence by a motion to make his pleading more definite and certain, but, if entitled to, must seek it either under the provision of the Code, permitting an examination of the party before trial, or requiring the service of a bill of particulars. Agnew v. Railroad Co., 13 Civ. Proc. R. 25. A bill of particulars is the appropriate remedy where the party seeks to be fully apprised of the particulars or circumstances of time and place of the matters set forth in his opponent’s plead[391]*391ings. Tilton v. Beecher, 59 N. Y. 176. An order requiring a complaint to be made more definite and certain may involve a substantial right, and if so is appealable. Brownell v. Bank, 13 Wkly. Dig. 371. The order appealed from must be reversed, with costs.

Nehrbas, J., concurring.

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2 N.Y.S. 389, 18 N.Y. St. Rep. 934, 15 N.Y. Civ. Proc. R. 193, 1888 N.Y. Misc. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durant-v-east-river-electric-light-co-nynyccityct-1888.

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