Sloman v. Schmidt

8 Abb. Pr. 5

Opinion

By the Court.

*—Brady, J.

The complaint contains a statement of the facts upon which the claim alleged is made. The statement of the facts, and the facts themselves, are not indefinite or uncertain. In Lienan a. Lincoln (2 Duer, 670), the complaint did not allege facts sufficient to constitute a cause of action. The defendant was charged with the receipt of moneys to the plaintiff’s use, without stating any additional fact showing that the plaintiff was entitled to the amount so received, when the action was commenced. In this case the defendants are charged with having received sums of money as the agents of the plaintiffs, which belonged, and still belongs to the plaintiffs, and which the defendants, though often requested so to do, refuse to pay. The items can be obtained by bill of particulars. The statement sought to be made a part of the complaint would be in effect a recital of the facts by which the claim must be established, or at least the embodiment of a bill of particulars in the complaint. The complaint is sufficient in form. (Allen a. Patterson, 3 Seld., 476 ; Adams a. Holley, 12 How. Pr. R., 326.)

And the order appealed from should be affirmed, with $10 costs.

Present, Daly, F. J., Brady and Hilton, JJ.