GILES a. BETZ

GILES a. BETZ. New York Superior Court; At Chambers, August, 1862. Motion to make Definite and Certain.—Offsets.—Landlord and Tenant.—Surety. Plaintiff is not bound in his complaint to furnish the defendant with the particulars of an offset. In an action to recover from the surety upon a lease the amount of rent due, plaintiff will not be required to reduce defendant’s liability by setting forth the particulars of certain sums received by him from the premises, which the surety is entitled to have credited to him. Motion to make the complaint more definite and certain. This action was brought by John S. Giles against John F. Betz to recover $831.81. Defendant was surety for Glandee & Torney, tenants of the plaintiff. The complaint set forth the lease, and that at a certain time the lessees had vacated the premises; that plaintiff, in pursuance of covenants in the lease, entered and relet to other parties ; that these parties had paid only a certain sum, and claimed judgment for the deficiency. The present motion was to require the plaintiff to make his complaint more definite and certain, by setting forth the names of the parties from whom rent had been received, and the various amounts. Comstock & Hartwick, for the motion. Gleason & Coe, opposed. [MAJORITY — Robertson, J.] Robertson, J. Unless the entry by the plaintiff on the premises was a surrender, he is entitled to recover from the defendant all the back rent due him, except what he may receive from the premises. There was no necessity for the plaintiff to set forth the receipt by him of any money. If he chooses to waive part of his claim, or give the defendant credit for any sums, he has a right to do so; but he is not bound to go further, and show the persons from whom he received the sums. If the defendant needs any information for his defence, he must obtain it in some other way. The Code provides for the mode of obtaining items of an account (§ 158), if this be one. At all events, the plaintiff is not bound to furnish the defendant with the particulars of his offset. The motion must be denied, with $1 costs.