MORAN a. MORRISSEY

MORAN a. MORRISSEY. New York Common Pleas; Special Term, July, 1864. Pleading.—Complaint fob Monet Lost at Plat.—Bill of Particulars. A bill of particulars should state how the items claimed became due. Thus a bill of particulars which states the items as an “amount advanced,’’ is defective. So held, where the complaint merely alleged that between certain dates the plaintiff paid and advanced to the defendant certain sums which defendants refused to repay, and which he owed to the plaintiff. It seems, that a complaint in an action to recover back money lost at play must be special; setting out the facts, and bringing the plaintiff within the statute, by force of which he claims to recover. A motion was made in this action that the complaint and bill of particulars be amended, so as to make the precise nature of the charge or claim against the defendants apparent, and so as to apprise the defendants of the ground upon which the plaintiff rested the action. The motion was made on the complaint and bill of particulars (the character of which appears in the opinion of the court), and on an affidavit on the part of the defendants, by which it appeared that previous to the commencement of the action the plaintiff made a claim against the defendants for about the amount claimed for moneys which he alleged to have been lost at play. George Owen, for the motion. I. The complaint and bill of particulars are indefinite and uncertain. Neither of them informs the defendants of the precise nature of the charge. (Code, § 160.) It is not stated whether the moneys were lent; whether they were entrusted to the defendants as bailees ; whether they were extorted from the plaintiff; whether they were lost at play or by wager; or any fact showing how, and for what reason, and upon what consideration they were paid and advanced. For aught that appears by the complaint and bill of particulars they may have been the subject of gift, or paid and advanced under circumstances which would preclude the right to recover them back. The allegation “ paid and advanced” would embrace all these. The allegation of indebtedness is a mere conclusion of law from said indefinite charge. (Chamberlin a. Kaylor, 2 E. D. Smith, 139.) If the action is for money lent, the complaint should allege that it was loaned; that it was not returned. (Victors a. Davis, 1 Dowl. & L., 984.) And so of all other charges. The Code requires that the complaint must contain “ a plain and concise statement of the facta constituting a cause of action.” (§ 142.) II. Section 160 of the Code was designed to reach just such cases as this. Where the facts stated in the complaint constitute a cause of action, a demurrer admits them, notwithstanding the indefinite manner- in which they are set forth. The remedy to reach the indefinite or uncertain statement is by section 160. That motion takes the place of the former special demurrer. (Prindle a. Caruthers, 15 N. Y. Rep., 425; Kellogg a. Baker, 15 Abbotts' Pr., 286.) No matter how certain or definite may be the facts stated, if the defendant cannot understand it, and requires greater, he must seek relief by motion, and the court will then judge of the necessity for it. (Graham a. Camman, 13 How. Pr., 360.) By taking issue on this indefinite allegation, the defendant might waive proof of any facts offered on the trial to sustain them. (Secley a. Engell, 13 N. Y., 542.) III. The defendants have the right to know whether these allegations are intended to embrace the prescribed claims for" money lost at-play. If they do not, as it is stated the plaintiff never pretended to have any other against them, he is entirely in the dark how to answer, or what is meant to be proved. If they do, then the defendants have the right to have them pleaded in proper form, so that they can demur to the complaint, or meet the exact facts by answer. If the action is to recover moneys pretended to have been lost at play, it must be by virtue of section 14 of art. 3,-of part 1, tit. 8, ch. 20 of Revised Statutes, 5 ed., 925. Such a suit would be barred by the limitation imposed in the statute, not having been brought within three calendar months after the loss. Again, the statute is in the nature of a penal one, and in such actions the plaintiff must set forth the particular acts and omissions which constitute the cause of action. (People a. Brooks, 4 Den., 469; Cole a. Smith, 4 Johns., 193; Bigelow a. Johnson, 13 Ib., 428; Morehouse a. Crilley, 8 How. Pr., 431.) Theodore Stuyvesant, oppossed. I. The complaint shows that between the 4th day of January, 1861, and the 1st day of December, 1863, both days inclusive, the plaintiff herein paid and advanced to the defendants the sum of eleven thousand seven hundred and fifty dollars. II. That the plaintiff has often' requested the defendants to return and repay said money, but that the defendants have neglected and refused to return and repay the same, or any part thereof, that the defendants remain and are indebted to the plaintiff herein, in the sum of eleven thousand seven hundred and fifty dollars, for which amount the plaintiff prays judgment against the defendants. III. The plaintiff’s bill of items shows the day and dates that the money, mentioned and set forth in the plaintiff’s complaint, was advanced to the defendants. IV. The complaint and bill of items, in this action, cannot be made more definite and certain. V. In an action for money lost at play, the complaint in this action would be all that the court would require of the plaintiff. (See Case of Collins a. Ragrew, 15 Johns., 5.) [MAJORITY — Cardozo, J.] Cardozo, J. This is a motion to require the plaintiff to make the bill of particulars furnished more definite and certain, so as to apprize the defendant distinctly what the cause of action is which it is claimed exists against them. The complaint states, that between certain dates, the plaintiff paid and advanced to the defendants sums amounting to $11,750. It does not aver under what circumstances this money was paid to the defendants, nor that thére was any agreement to refund it; but after the general allegation to which I have directed attention, the complaint proceeds to aver a request and refusal to return the amount, and then follows the usual statement, as a conclusion from these facts, of indebtedness by the defendant to the plaintiff. It is not necessary to say whether this complaint discloses any cause of action. I only allude to its averments to show that it presents a case in which the defendants cannot be , deemed to be unreasonable if they seek further information than such a pleading contains. The bill of particulars furnished gives various items, each of which, except as to date and amount, is stated in the same language. Por instance, “ 1861, January 4. To amount advanced, $200.” I think this is not sufficient. (See Bates a. Wotkyns, 2 How. Pr., 18 ; 4 Hill, 50.) “ The bill should set forth the nature of the plaintiff’s claim with sufficient particularity to enable the defendants to meet it at the trial. It should state the items of the demand,'and when and how it arose, and the sums claimed.” (Burrill’s Pr., vol. i., 432. See, also, Paine & Duer’s Pr., vol. ii., 150.) This would dispose of the present motion. But from the affidavit of the defendant Morrisey, which is uncontradicted, and the points submitted on behalf of the plaintiff, probably this motion is resisted for the purpose of procuring an opinion as to whether, assuming the cause of action to be for money alleged to have been lost by the plaintiff at play, a complaint similar to a declaration in indebitatus assumpsit, under the former practice, would be sufficient. While I have shown that, assuming such to be the case, the present bill of particulars is defective, I will proceed, as I have carefully examined the question, although not indispensable to the determination of this motion, to state the conclusion to which I have arrived. I think the complaint must be special—that the plaintiff must set out the facts, and bring himself within the statute, by force of which he claims to recover. (McKeon a. Caberty, 1 Hill’s Sup. Ct. Rep., 300.) The only case relied on by the plaintiff’s counsel is Collins a. Ragrew. (15 Johns., 5.) But that case was put on the ground that the statute, as it then existed, expressly authorized the losing party to bring his action, and to declare generally for money had and received by the defendant to their use, without setting forth special matter. (1 Rev. L., 152, §2.) No such provision exists in the statute under which suits to recover money lost by betting or gaming are now brought (Edmonds’ Statutes at Large, vol. i., 614); and, as the ground upon which the case in 15 Johns, was decided has ceased to exist, that case is inapplicable. In any view, I think this motion must be granted. Motion granted, with $10 costs.