Faulks v. Kamp

8 Jones & S. 70

• Court: The Superior Court of New York City
• Decided: August 3, 1875
• Status: Published

Opinion

By the Court.—Sedgwick, J.

I am of opinion that the order of the court affected no substantial right •of the plaintiff. It has been several times decided in this court, that when it appears that the court below has ordered the party to make pleadings more certain and definite, no substantial right is involved. In this case the complaint alleges facts, in such a way that the plaintiff is enabled to claim that he had set out a cause of action on a contract existing at the beginning of the action. There are also in the complaint other allegations which equally enable the plaintiff to claim that the complaint notified the defendant that the plaintiff’s cause of action was placed upon the avoidance by the plaintiff of the contract because of the defendant’s fraud. If this is not correct, it is not, only, because the complaint has omitted to aver some fact which is necessary to a cause of action, upon the contract, or for the avoidance of the contract. Whether the plaintiff has a cause of action upon either set of allegations can be examined only upon demurrer. A cause of action upon the contract is not consistent with a cause of action upon the avoidance of the contract. This being the contract, the order of the court directed the plaintiff* to notify the defendant by an amendment of the complaint upon which cause of action the action was brought. Ho right of substance would be affected by the plaintiff doing what was required of him. If he did not do it at the beginning, the election would have to be made at some stage of the case. So far as the plaintiff was concerned, it was matter of form. So far as defendant was concerned, he had a right that the complaint should clearly express the cause of action— of course the order did not limit the plaintiff in asking any relief he saw fit to claim upon the cause of action he relied on.

But if a substantial right of plaintiff was affected, I think the order was correct. The complaint taken as a whole, made it evident that the plaintiff put himself upon the contract and the avoidance of the contract, leaving it uncertain upon which the action was to proceed. It could not proceed on both. The defendant had a strict right to know, at the start, what case the plaintiff meant to go upon.

The order should be affirmed, with ten dollars costs and disbursements.

Curtis, J., concurred.