Peters v. Huppert

159 A.D. 829, 144 N.Y.S. 1068, 1913 N.Y. App. Div. LEXIS 8269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1913
• Status: Published

Opinion

Per Curiam:

The complaint alleges that during all the times herein mentioned Henry J. Hoerner and Henry E. Hoerner were copartners in business under the firm name and style of H. J. Hoerner & Son; that during all the times herein mentioned the defendants were copartners engaged in the erection and construction of certain buildings; that thereafter and while the defendants were engaged as copartners in the erection and construction of said buildings the said firm of H. J. Hoerner & Son, at the special instance and request of the defendants, performed certain work, labor and services and furnished certain materials, and that there is a balance due and that thereafter and before the commencement of this action said H. J. Hoerner & Son assigned the foregoing claim and. cause of action to the plaintiff.

No dates whatever are stated in the complaint as to when the construction work was commenced or finished, or when the amount became due or when the partial payments were made, or when the demand was made. This motion was for an order that the complaint he made definite and certain by showing the time when the alleged services were rendered and the materials furnished. Without such allegations the defendant is deprived of the information as to whether he has or has not a defense under the Statute of Limitations.

The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion granted, with ten dollars costs.

Present—Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.