Seymour v. Warren

71 A.D. 421, 75 N.Y.S. 903

Opinion

Willard Bartlett, J.:

I think this motion was properly denied. It does not seem to me that the allegations of the complaint “ are so indefinite or uncertain that the precise meaning or application thereof is not apparent,” as required by section 546 of the Code in order to justify granting such an application.

The complaint states two separate and complete causes of action arising out of one transaction; and the purpose of the motion seems' to have been to compel the plaintiff to elect, in advance of the-trial, whether she would attempt to recover on the contract which she sets out, or independently of the contract. The appellants find authority for such an application in the case of Faulks v. Kamp (40 N. Y. Super. Ct. 70); but that decision is adverse-to the view of the subject which has been taken in the Supreme Court. (Longprey v. Yates, 31 Hun, 432; Blank v. Hartshorn, 87 id. 101; Lyke v. Post, 65 How. Pr. 298.) The case last cited is a Special Term decision, hut it is in harmony with the opinion in Velie v. Newark City Insurance Company (65 How. Pr. 1), from which the General Term of the fifth department quotes approvingly in Blank v. Hartshorn (supra).

The order appealed from should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.