Smythe v. Cleary

127 A.D. 555, 111 N.Y.S. 872, 1908 N.Y. App. Div. LEXIS 4055

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1908
• Status: Published

Opinion

McLaughlin, J.:

Action to recover $10,750, valué of services alleged to have been performed and disbursements made by the plaintiff while acting as the attorney for the defendant.

The complaint alleges that the plaintiff is an attorney and counselor at law, duly, admitted and licensed to practice in all the courts of the State of Massachusetts, and for more than thirty years has made a specialty of closing estates of decedents where their heirs or distributees were lost or unknown, and in searching out and finding such unknown heirs and next of kin, and establishing family trees, being an expert in such work; that between the 2d of May, 1906, and about the 20th of March, 1907, he rendered work, labor and services to the defendant, at her request and instance, in the matter of investigating, tracing out and establishing the ancestry of the defendant and her relationship to one-Patrick White, deceased; and also in establishing the defendant’s right to a share of the said decedent’s estate and in protecting and securing such interest, which is of the válue of $25,000 to $35,000; and placed at her disposal information necessary to protect her interest in such estate ; that the services rendered were reasonably worth -the sum of $10,000;. that he also expended in behalf of defendant, in rendering such service, necessary disbursements to the amount of $.750.

Then follows an allegation that no part of such sum has been paid, and a demand for judgment therefor, with interest.

Upon motion of-defendant the court below has required plaintiff to make the complaint more definite and certain by stating the time when and the place where the request for work was made, the form or manner in which made, whether in writing or verbal, and if in writing setting forth a copy of the same. Also by stating whether the request was made directly by the defendant or through some other person, and if another person the name of such person; also setting forth the terms and provisions of the request “ as respects when the said work * * * were

* to be rendered by the plaintiff and in what character or capacity, and whether as an -agent or as an attorney-at-law; and if as an attorney-at-law then where and in what court or courts.” Also the terms and provisions of said request, if any, as respects the compensation to be made for said service, and when the same was to become payable. Plaintiff appeals from the order.

A complaint must contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition and a demand for the judgment to which the plaintiff supposes himself entitled. (Code Civ. Proc. § 481.) The complaint does this. There is nothing indefinite or uncertain ■ about it. The facts are plainly and concisely stated and there is a demand for the judgment to which the plaintiff thinks himself entitled. It is only when the allegation is so indefinite or uncertain that the precise meaning or application thereof is not apparent that the court is authorized to require'the pleading to be made more definite and certain by amendment. (Code Civ. Proc. § 546; Citizens' Central National Bank v. Munn, 115 App. Div. 471.)

. It is possible the defendant may be entitled to some of the information desired, but he cannot get it in this way. If the plaintiff had set out in his complaint the evidence to establish the cause of action alleged it would have been improper and could have been stricken out on motion.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Lahghlin, Houghton and Scott, JJ., concurred.

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

Sie.