Roeder v. Mayer

Appellate Division of the Supreme Court of New York

Roeder v. Mayer

173 A.D. 157, 159 N.Y.S. 895, 1916 N.Y. App. Div. LEXIS 6648

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

DecidedJune 16, 1916

StatusPublished

This text of 173 A.D. 157 (Roeder v. Mayer) 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

Roeder v. Mayer, 173 A.D. 157, 159 N.Y.S. 895, 1916 N.Y. App. Div. LEXIS 6648 (N.Y. Ct. App. 1916).

Pincite

Opinion

Laughlin, J.:

The nature of the cause of action is not definitely shown, by the allegations of the complaint. A breach of contract on the part of the defendant in failing to apply rents due and owing to the bankrupt, but which it duly authorized him to collect from subtenants, in payment of rent reserved and taxes payable under the lease from the owner to the bankrupt, as agreed, in consequence of which the bankrupt was dispossessed and its lease terminated is alleged, and also conversion of the moneys so collected and not applied as agreed. The defendant, desiring to know whether the action is for damages for the breach of the contract, or for the conversion of the funds, or both, moved to have the complaint made more definite by separately stating and numbering the causes of action, if plaintiff claims the right to proceed on both theories, and if only damages for a breach of contract are claimed, then to have the allegations with respect to conversion eliminated, and if damages for the conversion only are claimed, then to have the allegations which would be material only as affording a basis of recovery for damages for a breach of the contract eliminated.

The order recites that the brief filed in behalf of plaintiff in opposition to the motion showed that plaintiff disclaimed that the action was for conversion, and on that theory the court properly struck out the allegations appropriate only to an action for conversion. The complaint is left without any allegations of fact with respect to damages, for it is not alleged that the lease had any value, or that the rental value of the premises, from which the bankrupt has been dispossessed through defendant’s failure to perform its contract, was more than the rent reserved. Counsel for appellant now claims that the action is for conversion. When he changed his opinion with respect to the nature of the action, he should have moved to be relieved from his election, and if he claimed that the court must have misunderstood his contention, he should have applied for a reargument. We think, however, that the election was not sufficiently for[159]*159mal to bind his client thereby, and, therefore, the order which should have been made at Special Term will be made here.

The order is reversed, without costs, and motion to have complaint made more definite and certain granted, with ten dollars costs, and plaintiff is required to serve an amended complaint separately stating and numbering the causes of action if he claims both for breach of contract and for conversion, and, if not, then eliminating the allegations not appropriate or necessary, as already indicated, to the single cause of action, whether for breach of contract or for conversion.

Clarke, P. J., Dowling, Page and Davis, JJ., concurred.,

Order reversed, without costs, and motion granted as stated in opinion, with ten dollars costs. Order to be settled on ■notice.

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Laughlin, J.:

The nature of the cause of action is not definitely shown, by the allegations of the complaint. A breach of contract on the part of the defendant in failing to apply rents due and owing to the bankrupt, but which it duly authorized him to collect from subtenants, in payment of rent reserved and taxes payable under the lease from the owner to the bankrupt, as agreed, in consequence of which the bankrupt was dispossessed and its lease terminated is alleged, and also conversion of the moneys so collected and not applied as agreed. The defendant, desiring to know whether the action is for damages for the breach of the contract, or for the conversion of the funds, or both, moved to have the complaint made more definite by separately stating and numbering the causes of action, if plaintiff claims the right to proceed on both theories, and if only damages for a breach of contract are claimed, then to have the allegations with respect to conversion eliminated, and if damages for the conversion only are claimed, then to have the allegations which would be material only as affording a basis of recovery for damages for a breach of the contract eliminated.

The order recites that the brief filed in behalf of plaintiff in opposition to the motion showed that plaintiff disclaimed that the action was for conversion, and on that theory the court properly struck out the allegations appropriate only to an action for conversion. The complaint is left without any allegations of fact with respect to damages, for it is not alleged that the lease had any value, or that the rental value of the premises, from which the bankrupt has been dispossessed through defendant’s failure to perform its contract, was more than the rent reserved. Counsel for appellant now claims that the action is for conversion. When he changed his opinion with respect to the nature of the action, he should have moved to be relieved from his election, and if he claimed that the court must have misunderstood his contention, he should have applied for a reargument. We think, however, that the election was not sufficiently for[159]*159mal to bind his client thereby, and, therefore, the order which should have been made at Special Term will be made here.

The order is reversed, without costs, and motion to have complaint made more definite and certain granted, with ten dollars costs, and plaintiff is required to serve an amended complaint separately stating and numbering the causes of action if he claims both for breach of contract and for conversion, and, if not, then eliminating the allegations not appropriate or necessary, as already indicated, to the single cause of action, whether for breach of contract or for conversion.

Clarke, P. J., Dowling, Page and Davis, JJ., concurred.,

Order reversed, without costs, and motion granted as stated in opinion, with ten dollars costs. Order to be settled on ■notice.

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Bluebook (online)

173 A.D. 157, 159 N.Y.S. 895, 1916 N.Y. App. Div. LEXIS 6648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roeder-v-mayer-nyappdiv-1916.