Ottman v. Fletcher

23 Abb. N. Cas. 430

• Court: The Superior Court of New York City
• Decided: November 15, 1889
• Status: Published

Opinion

Dugro, J.

I think the complaint should be made more definite and certain by giving the substance or full terms of the alleged modification, and also by stating whether the words “ said contract ” in paragraph 5, refer to the original contract or to the same as modified. The precise meaning and the application of the allegations of the complaint are apparent, without a specification of the time and place of the alleged modification, or any statement as to whether this modification was in writing, and therefore the defendant’s motion, so far as it asks for information as to these particulars, should not be granted (See Tilton v. Beecher, 59 N. Y. 176). In Betts v. Bache (23 How.Pr. 197), it is held that it is not necessary in a pleading to state a contract within the statute of frauds to be in writing. As to the contention of plaintiff’s counsel that the defendant is well aware of all the facts upon which the plaintiff’s claim is founded, by reason of another action, etc., it is sufficient to say that the defendant is entitled to be informed by the complaint of the facts constituting the plaintiff’s cause of action (§ 481 Code-Civil Proi). He may have reason to know the nature of the plaintiff’s claim aside from the pleadings, but it is his-right to rely only upon that which appears in the complaint itself. An order in accordance with the above will be-granted, without costs.