Medin v. De Gennaro

New York County Courts

Medin v. De Gennaro

3 Misc. 2d 40, 149 N.Y.S.2d 918, 1956 N.Y. Misc. LEXIS 1986

CourtNew York County Courts

DecidedApril 2, 1956

StatusPublished

Cited by1 cases

This text of 3 Misc. 2d 40 (Medin v. De Gennaro) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Medin v. De Gennaro, 3 Misc. 2d 40, 149 N.Y.S.2d 918, 1956 N.Y. Misc. LEXIS 1986 (N.Y. Super. Ct. 1956).

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Opinion

Archibald C. Wemple, J.

Plaintiff and defendants entered into a purchase offer and agreement made part of the offer on the 24th day of June, 1955. . Thereafter and on the 24th day of August of that year, the plaintiff and one of the defendants entered into a further separate agreement relating to the dryness of the cellar, and then another separate contract on the same date called “ Construction G-uarantee Contract.”

The purpose that rule 90 of the Buies of Civil Practice intends to accomplish is to fully inform an adverse party as to the extent of the claims being made against him, thus enabling him intelligently to plan and prepare his pleading in response thereto. (O’Hara v. Derschug, 232 App. Div. 31.)

‘ ‘ It is nowhere alleged that the last two contracts were modifications of the original contract or formed any part thereof, and the complaint furnishes no means by which it can be determined with certainty how the amount sued for is arrived at or apportioned between these three contracts. The defendants are entitled to know whether the plaintiff is relying upon the original contract, subsequently modified by mutual agreement, and if such is plaintiff’s contention it should state so unequivocally. If, on the other hand, the plaintiff is suing upon three separate causes of action, then they must be separately numbered and stated, and it must appear how much is sought to be recovered upon each of them.” (See Seaman, Inc., v. Stirn, 137 App. Div. 659, 660. See, also, Egan & Co. v. Butterworth, 66 App. Div. 480.)

The court feels that it is difficult and even hazardous for the defendants to answer the complaint of the plaintiff because of the numerous separate contracts of differing dates. The fact that some of them were not signed by both defendants is significant. Defendants’ counsel on argument properly raises the question of consideration or lack of it as it may apply to the so-called agreements supplementing the original contract.

In the interest of justice and good practice, it is felt that [42]*42plaintiff should separately state and number his causes of action of various alleged breaches to the specific contract which he claims has been breached and that the proper defendant be named in each case.

Motion is accordingly granted. Submit order.

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Archibald C. Wemple, J.

Plaintiff and defendants entered into a purchase offer and agreement made part of the offer on the 24th day of June, 1955. . Thereafter and on the 24th day of August of that year, the plaintiff and one of the defendants entered into a further separate agreement relating to the dryness of the cellar, and then another separate contract on the same date called “ Construction G-uarantee Contract.”

The purpose that rule 90 of the Buies of Civil Practice intends to accomplish is to fully inform an adverse party as to the extent of the claims being made against him, thus enabling him intelligently to plan and prepare his pleading in response thereto. (O’Hara v. Derschug, 232 App. Div. 31.)

‘ ‘ It is nowhere alleged that the last two contracts were modifications of the original contract or formed any part thereof, and the complaint furnishes no means by which it can be determined with certainty how the amount sued for is arrived at or apportioned between these three contracts. The defendants are entitled to know whether the plaintiff is relying upon the original contract, subsequently modified by mutual agreement, and if such is plaintiff’s contention it should state so unequivocally. If, on the other hand, the plaintiff is suing upon three separate causes of action, then they must be separately numbered and stated, and it must appear how much is sought to be recovered upon each of them.” (See Seaman, Inc., v. Stirn, 137 App. Div. 659, 660. See, also, Egan & Co. v. Butterworth, 66 App. Div. 480.)

The court feels that it is difficult and even hazardous for the defendants to answer the complaint of the plaintiff because of the numerous separate contracts of differing dates. The fact that some of them were not signed by both defendants is significant. Defendants’ counsel on argument properly raises the question of consideration or lack of it as it may apply to the so-called agreements supplementing the original contract.

In the interest of justice and good practice, it is felt that [42]*42plaintiff should separately state and number his causes of action of various alleged breaches to the specific contract which he claims has been breached and that the proper defendant be named in each case.

Motion is accordingly granted. Submit order.

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3 Misc. 2d 40, 149 N.Y.S.2d 918, 1956 N.Y. Misc. LEXIS 1986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medin-v-de-gennaro-nycountyct-1956.

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