Madison Real Property & Security Co. v. Hutton

155 A.D. 891, 139 N.Y.S. 1104

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1913
• Status: Published

Opinion

Scott, J.:

It is not easy to determine from reading the complaint just what cause of action the pleader intended to state. Many of the allegations seem to indicate an intention to state a cause of action for damages for conversion, and, indeed, that word is freely used as characterizing the defendants’ acts. If this is the cause of action intended to be pleaded and relied upon the allegations sought to be stricken out are clearly irrelevant. On the other hand, many of the allegations of the complaint seem to point to an intention to sue for the recovery of money deposited with defendants, such deposit having been induced by fraudulent representation. In so far as the allegations sought to be stricken out refer to an existing fact, and not a mere promise or representation as to what would or might be expected to occur in the future, they may not be irrelevant to the cause of action we are now considering. The defendants are certainly entitled to know what they must meet, and the motion should, therefore, have been granted to the extent of requiring the complaint to be made more definite and certain, and requiring plaintiff, if she seeks to plead alternative causes of action to separately state and number them. The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated, with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.