Louis W. Peters, Respondent, v. Isaac Huppert and Edward Bernstein, Defendants, Impleaded with A. Fred Silverstone, Appellant

Louis W. Peters, Respondent, v. Isaac Huppert and Edward Bernstein, Defendants, Impleaded with A. Fred Silverstone, Appellant. First Department, December 31, 1913. Pleading—complaint for work, labor, services and materials furnished —failure to allege when services were performed and payments made — motion to make more definite and certain. Where a complaint in an action for work, labor, services and materials furnished fails to allege when the services were rendered or the materials furnished, or when payments or demands therefor were made, a motion to make the complaint more definite and certain should be granted, because under such allegations the defendant is deprived of information as to whether he has a defense under the Statute of Limitations. Appeal by the defendant, A. Fred Silverstone, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1913, denying his motion to require plaintiff to make the complaint more definite and certain. George Trosk of counsel [Katz & Sommerich, attorneys], for the appellant. Joseph Gans, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The complaint alleges that during all the times herein mentioned Henry J. Hoerner and Henry E. Hoerner were copartners in business under the firm name and style of H. J. Hoerner & Son; that during all the times herein mentioned the defendants were copartners engaged in the erection and construction of certain buildings; that thereafter and while the defendants were engaged as copartners in the erection and construction of said buildings the said firm of H. J. Hoerner & Son, at the special instance and request of the defendants, performed certain work, labor and services and furnished certain materials, and that there is a balance due and that thereafter and before the commencement of this action said H. J. Hoerner & Son assigned the foregoing claim and. cause of action to the plaintiff. No dates whatever are stated in the complaint as to when the construction work was commenced or finished, or when the amount became due or when the partial payments were made, or when the demand was made. This motion was for an order that the complaint he made definite and certain by showing the time when the alleged services were rendered and the materials furnished. Without such allegations the defendant is deprived of the information as to whether he has or has not a defense under the Statute of Limitations. The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion granted, with ten dollars costs. Present—Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.