OTTMAN v. FLETCHER

OTTMAN v. FLETCHER. N. Y. Superior Court, Special Term and Chambers; November, 1889. 1. Pleading; motion to make definite and certain.] Under Code Civ. Pro., section 481, a defendant is entitled to be informed by the complaint of the facts constituting the plaintiff’s cause of action, and it is not an answer to a motion to make a complaint more definite and certain that the defendant has become acquainted with all the facts upon which plaintiff’s claim is founded in another action relating to the same subject matter. 2. The same.] A complaint alleging a modification of a contract will be required to give the substance or full terms of the alleged modification, but not to state the time and place and whether or not by a writing. Motion to have complaint made more definite and certain. The complaint in this action, after alleging that a contract was made between plaintiff and one Caffee for the manufacture by plaintiff and the delivery to said Caffee of a certain number of advertising and playing cards, a certain sum to be paid down on the making of the contract, and the balance to be paid on delivery of the cards, stated that the original contract was modified to the extent that a less number of cards should be delivered than was originally provided for. Paragraph 5, among other things, alleges “ that the defendant on the day said contract was made, guaranteed in writing the payment ” under said contract. Defendant moves to make the complaint more definite and certain by stating in what respect the contract alleged in the' complaint was modified, whether such modification was in writing, the time and the place of such modification, the full terms of the same, and whether the words “said •contract” in paragraph 5, referred to the original contract ■or to the modified contract. George H. Fletcher, defendant’s attorney for the motion. Goepel (& Raegener, plaintiff’s attorneys, opposed. [MAJORITY — Dugro, J.] Dugro, J. I think the complaint should be made more definite and certain by giving the substance or full terms of the alleged modification, and also by stating whether the words “ said contract ” in paragraph 5, refer to the original contract or to the same as modified. The precise meaning and the application of the allegations of the complaint are apparent, without a specification of the time and place of the alleged modification, or any statement as to whether this modification was in writing, and therefore the defendant’s motion, so far as it asks for information as to these particulars, should not be granted (See Tilton v. Beecher, 59 N. Y. 176). In Betts v. Bache (23 How.Pr. 197), it is held that it is not necessary in a pleading to state a contract within the statute of frauds to be in writing. As to the contention of plaintiff’s counsel that the defendant is well aware of all the facts upon which the plaintiff’s claim is founded, by reason of another action, etc., it is sufficient to say that the defendant is entitled to be informed by the complaint of the facts constituting the plaintiff’s cause of action (§ 481 Code-Civil Proi). He may have reason to know the nature of the plaintiff’s claim aside from the pleadings, but it is his-right to rely only upon that which appears in the complaint itself. An order in accordance with the above will be-granted, without costs.