Gould v. McLaughlin

112 N.Y.S. 518

Opinion

GIEGERICH, J.

The amended complaint alleges that the agent of the defendant, while in the course of his employment and while engaged in serving the summons, as a means and for the purpose of effecting that' service, “and being encouraged, aided and abetted by the defendant,” committed the assault for which damages are sought. This motion is brought to compel the plaintiff to make more definite and certain the allegation contained in the words quoted above.

If the defendant is entitled to any- relief, he has mistaken his remédy. Neither the precise meaning nor the application of the words in question is in any way in doubt, which by the statute is made the test of the right to the remedy here sought. Code Civ. Proc. § 546. If the defendant requires and is entitled to more precise or detailed information as to the manner in which the acts charged were accomplished, his relief is through the medium of a bill of particulars. Kavanaugh v. Commonwealth Trust Co., 45 Misc. Rep. 201, 91 N. Y. Supp. 967; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181, 84 N. Y. Supp. 669.

Motion denied, with $10 costs.