Opinion
April 5, 1907.
Charles J. Fay [ Charles D. Miller with him on the brief], for the appellant.
Joseph H. Choate [ James McKeen and Joseph H. Choate, Jr., with him on the brief], for the respondent.
The motion to make the complaint more definite and certain or, in the alternative, for a bill of particulars, were improperly joined, because one may only be made before and the other ordinarily only after pleading. Moreover, the motion having been made before defendant answered and before it was rendered certain that the material allegations of the complaint would be controverted, and a bill of particulars not having been shown to be necessary to enable defendant to plead, it was premature in so far as it demands a bill of particulars, and was, therefore, in that regard properly denied without prejudice to renewal after issue joined. ( American Credit Indemnity Co. v. Bondy, 17 App. Div. 328.) The controlling consideration in deciding whether a complaint should be made more definite and certain is whether it contains a plain and concise statement of the facts constituting the cause of action as required by section 481 of the Code of Civil Procedure, and is prescribed in section 546 of the same Code, which authorizes the court to require a pleading, the allegations of which are "so indefinite or uncertain that the precise meaning or application thereof is not apparent," to be made definite and certain. The court may require that allegations with respect to the nature of the charge be made definite; but neither particulars nor circumstances of time and place should be required. ( Tilton v. Beecher, 59 N.Y. 176, 183; People v. Tweed, 63 id. 194.) The remedy is prescribed to enable a party before pleading to ascertain the charge made against him with sufficient definiteness to enable him to properly plead.
The action is at law to recover damages for a breach or neglect of duty of the defendant as a trustee of plaintiff, a domestic life insurance corporation, holding office continuously, under six successive elections, from the 1st day of June, 1885, to the 28th day of March, 1906, and as a vice-president of plaintiff from the 16th day of December, 1885, to said 28th day of March, 1906.
Plaintiff alleges, for its first cause of action, that it was the duty of the defendant as trustee and vice-president, among other things, to preserve the assets of the company from waste, to neither authorize nor make, nor knowingly or negligently permit to be made any unlawful or improvident use of its funds, and to be diligent, vigilant and faithful in the discharge of his duties; that, as vice-president, it was his duty to examine and approve or disapprove, in writing, bills and vouchers for disbursements, and that he knowingly or negligently approved and recommended for payment a large number of bills and vouchers which were not proper charges against the company, to its damage in the sum of $200,000. These facts plainly show a cause of action for general damages for wrongful acts or negligence as agent of the company; and amounts lost by the company through such wrongful acts or negligence are evidence of the damages, but are not specifically recoverable. ( Mutual Life Ins. Co. v. McCurdy, No. 1, 118 App. Div. 815, argued and decided herewith.) It was not necessary, therefore, to allege the dates or amounts of the payments, or the facts with respect to each. That information may, in a proper case, be obtained by a motion for a bill of particulars after issue joined.
Plaintiff, for its second cause of action, further alleges that in the years 1896, 1900 and 1904, defendant, acting in concert with certain other officers of the company and in disregard of his duty to plaintiff to preserve its property from waste, approved of and participated in paying out $92,000 of its funds for political campaign contributions, which were wholly unauthorized. These allegations show a cause of action both for mere negligence and for wrongful acts as agent of the company; and as a cause of action upon either theory might arise on those facts, plaintiff should not be required at this time, at least, to make an election by making the complaint more definite and certain. ( Mutual Life Ins. Co. v. McCurdy, No. 1, supra.)
In the fifth count plaintiff further alleges that during the period from January, 1900, until the close of the year 1905, defendant acted in concert with certain officers of the company, who, without authority and pursuant to a preconcerted arrangement, established and maintained with plaintiff's moneys a "Confidential Fund" which they disbursed without authority and for unlawful purposes; that plaintiff knew or should have known these facts and that acting in concert with them he approved of and participated in the establishment, maintenance and disbursement of said fund, and neglected to perform his duty to prevent or attempt to prevent such waste of funds of the company, or to give notice to plaintiff's board of trustees and to its policyholders, to its damage in the sum of $600,000. The reason already assigned for denying the motion as to the second cause of action is controlling here and leads to a like decision.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
PATTERSON, P.J., INGRAHAM, CLARKE and SCOTT, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.