Opinion
February 4, 1921.
John J. Cunneen, for the appellant.
Henry Abelson of counsel [ Hays, Hershfield Wolf, attorneys], for the respondents.
The complaint after the allegation as to the parties states: "That heretofore the plaintiffs, at the special instance and request of the defendant, sold and delivered to the defendant goods, wares and merchandise of the agreed price and reasonable value of $8,321.27. * * * That no part thereof has been paid, although payment thereof has been duly demanded, except the defendant is entitled to a credit of $72.60 for merchandise returned, leaving a balance of $8,248.67 due, owing and unpaid from the defendant to the plaintiffs." Judgment is demanded for said sum with interest.
It is well settled that this form of a complaint, which is similar to one of the common counts in a declaration of the common-law pleading, satisfies the requirement of section 481 of the Code of Civil Procedure (Code Proc. § 142) that the complaint shall contain: "A plain and concise statement of the facts constituting each cause of action without unnecessary repetition." ( Allen v. Patterson, 7 N.Y. 476, 478.) Therefore, this complaint would survive a demurrer for insufficiency. That, however, is not the question presented by a motion to make definite and certain under section 546 of the Code of Civil Procedure. On demurrer for insufficiency the defects must be so substantial in their nature and so fatal in character as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. If the defendant requires a greater degree of certainty than is found in the complaint, he must move that the complaint be made definite and certain. ( Graham v. Camman, 5 Duer, 697, 699.) On such a motion the question is, are one or more of the allegations contained in the complaint so indefinite or uncertain that the precise meaning or application thereof is not apparent.
In my opinion, the failure to allege a date or dates upon which the goods were sold makes the allegation indefinite and uncertain within the purview of section 546. It does not definitely appear whether this was a contract for sale that was executed by a single delivery, or whether there were several separate and distinct contracts, the aggregate value of which amounted to $8,321.27. If this should be the case, then each transaction would constitute a separate cause of action, and should be separately stated and numbered (Code Civ. Proc. § 483), and the defendant might have different defenses to the various causes of action. It may be that if the date or dates were alleged, the Statute of Limitations would be a bar that the defendant could plead to the entire cause or to one or more of the causes of action. ( Barrett Mfg. Co. v. Sergeant, 149 App. Div. 1, 4.) For these reasons a bill of particulars would not furnish the defendant with the information to which he is entitled. Bills of particulars are seldom ordered before answer, and it is their office to limit evidence and not to supply defects in pleading. Before the defendant is required to answer he should be advised certainly of the facts which plaintiffs allege as the cause of action against him.
For these reasons the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
CLARKE, P.J., LAUGHLIN, DOWLING and GREENBAUM, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.