Lasher v. McDermott

Appellate Division of the Supreme Court of New York

Lasher v. McDermott

162 A.D. 232, 147 N.Y.S. 446, 1914 N.Y. App. Div. LEXIS 9318

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1914

StatusPublished

Cited by1 cases

This text of 162 A.D. 232 (Lasher v. McDermott) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lasher v. McDermott, 162 A.D. 232, 147 N.Y.S. 446, 1914 N.Y. App. Div. LEXIS 9318 (N.Y. Ct. App. 1914).

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Opinion

Woodward, J.:

The complaint alleges a cause of action against the defendant, as executor of the last will and testament of Rose Quest, deceased, and plaintiff claims to be entitled to a judgment for the value of a certain house and lot and certain household furniture, it being claimed that the testatrix in her lifetime agreed to give to the plaintiff this property, by her will, in consideration of the performance of services as a nurse and attendant during her last illness. The defendant’s first separate defense admits certain allegations of the complaint, and “as to each and every other allegation of the complaint the defendant denies that he has any knowledge or information sufficient to form a belief.” The plaintiff moved for an order of the court to compel the defendant to make this defense definite and certain, and this motion having been denied, appeal is made to this court.

We áre clearly of the opinion that the order appealed from should not be disturbed. The answer is sufficiently definite and certain to raise an issue. It admits certain facts, and puts in a general denial as to the remainder, and this is all that the Code of Civil Procedure requires. Whether the denial of information and belief is sufficient is a question of law to be determined upon the trial, but is not properly to be tested by a motion to make definite and certain. “ The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty ” (Broom Leg. Max. [8th ed.] 187), and so it has been held that a pleading is not objectionable as ambiguous or obscure if it be certain to a common intent; that is, if it be clear enough according to rea[234]*234sonable intendment or construction, though not worded with absolute precision. (Stephen Pleadings [6th ed.], 312.) Here the pleading follows the common form, and puts in issue the matters not denied, and there can be no question of its reasonable certainty.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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Woodward, J.:

The complaint alleges a cause of action against the defendant, as executor of the last will and testament of Rose Quest, deceased, and plaintiff claims to be entitled to a judgment for the value of a certain house and lot and certain household furniture, it being claimed that the testatrix in her lifetime agreed to give to the plaintiff this property, by her will, in consideration of the performance of services as a nurse and attendant during her last illness. The defendant’s first separate defense admits certain allegations of the complaint, and “as to each and every other allegation of the complaint the defendant denies that he has any knowledge or information sufficient to form a belief.” The plaintiff moved for an order of the court to compel the defendant to make this defense definite and certain, and this motion having been denied, appeal is made to this court.

We áre clearly of the opinion that the order appealed from should not be disturbed. The answer is sufficiently definite and certain to raise an issue. It admits certain facts, and puts in a general denial as to the remainder, and this is all that the Code of Civil Procedure requires. Whether the denial of information and belief is sufficient is a question of law to be determined upon the trial, but is not properly to be tested by a motion to make definite and certain. “ The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty ” (Broom Leg. Max. [8th ed.] 187), and so it has been held that a pleading is not objectionable as ambiguous or obscure if it be certain to a common intent; that is, if it be clear enough according to rea[234]*234sonable intendment or construction, though not worded with absolute precision. (Stephen Pleadings [6th ed.], 312.) Here the pleading follows the common form, and puts in issue the matters not denied, and there can be no question of its reasonable certainty.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

162 A.D. 232, 147 N.Y.S. 446, 1914 N.Y. App. Div. LEXIS 9318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasher-v-mcdermott-nyappdiv-1914.

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