James H. Driscoll, Respondent, v. Marguerite Fay Hammill, as Executrix of and Trustee under the Last Will and Testament of Ellen Driscoll, Deceased, Appellant

James H. Driscoll, Respondent, v. Marguerite Fay Hammill, as Executrix of and Trustee under the Last Will and Testament of Ellen Driscoll, Deceased, Appellant. First Department, May 15, 1914. Pleading—when complaint should be made more definite and certain — suit to impress trust on proceeds of land. Suit by the grantor of real estate to impress a trust on the proceeds of lands conveyed. Complaint examined, and held, that the defendant was entitled to have the complaint made more definite and certain. The complaint in such action should set out’ the following matters with certainty: (1) The amount of the trust fund and the precise agreement out of which the alleged trust arose; (2) the terms of the agreement of the alleged trustee and whether the agreement was oral or in writing, or partly oral and partly in writing; (3) when the plaintiff made demand for the payment alleged to have been refused. Appeal by the defendant, Marguerite Fay Hammill, as executrix and trustee, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1914, denying her motion to make the complaint more definite and certain. Benjamin E. Messler, for the appellant. Franklyn M. Silverstein, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Whether designedly or not, the complaint in this action is a model of indefiniteness, and one which it would be quite unreasonable to ask the defendant to answer in its present shape. The plaintiff alleges that in' the year 1887 he and his wife conveyed to his mother (defendant’s testatrix) certain real estate of the value of upwards of $7,000; that he did not receive the amount to which he became entitled by virtue of said conveyance, and that his mother agreed to invest and reinvest the principal and income of said fund and to pay it upon demand to plaintiff, which though often requested, she refused to do. He seeks to spell out of these facts a trust on his mother’s part, which he now seeks to enforce against her executrix. The first and most obvious indefiniteness is as to the amount of the trust fund. Was it a sum agreed upon as consideration for the conveyance, or the value of the property at the time of the conveyance, or the amount which the mother might have realized upon a sale, or what was it ? The defendant is certainly entitled to know what plaintiff’s claim is in this regard. And what was the precise agreement out.of which the alleged trust is said to have grown ? The allegations of the complaint are evidently plaintiff’s conclusions as to the effect of some precise agreement between himself and his mother. The defendant is entitled to know just what the agreement was and whether it was oral or in writing, or partly oral or partly in writing. The defendant is also entitled to know when plaintiff made the demands for payment with which he says that his mother refused to comply. All of -these matters are within plaintiff’s knowledge, and, presumptively, are unknown to defendant. She should be apprised of them in the complaint, to the end that she may be able to plead intelligently. To leave her to obtain the information through a bill of particulars would not aid her in pleading. Whether a plea of the Statute of Frauds or of the Statute of Limitations would be available need not be considered now, and indeed cannot be in the present indefinite form of the complaint. The defendant is entitled to an opportunity to present each defense as she may be advised, leaving their effect and validity to be determined hereafter. The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated in this opinion. Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion. Order to be settled on notice.