Cornelia Seymour, Respondent, v. Walter H. Warren and J. Harper Skillin, Appellants

Cornelia Seymour, Respondent, v. Walter H. Warren and J. Harper Skillin, Appellants. Motion to compel the plaintiff to make his complaint definite and certain — not granted, simply to force the plaintiff to an election before trial. A motion to require a plaintiff to make her complaint, which states two separate causes of action arising out of one transaction, definite and certain, should not be granted, where the purpose of the motion is to compel the plaintiff to elect in advance of the trial whether she will attempt to recover on the contract set out in the complaint or independently of such contract. Appeal by the defendants, Walter H. Warren and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of December, 1901, denying the defendants’ motion to compel the plaintiff to make the complaint definite and certain. James J. Allen, for the appellants. Edmund L. Mooney [Frederick A. Card with him on the brief], for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: I think this motion was properly denied. It does not seem to me that the allegations of the complaint “ are so indefinite or uncertain that the precise meaning or application thereof is not apparent,” as required by section 546 of the Code in order to justify granting such an application. The complaint states two separate and complete causes of action arising out of one transaction; and the purpose of the motion seems' to have been to compel the plaintiff to elect, in advance of the-trial, whether she would attempt to recover on the contract which she sets out, or independently of the contract. The appellants find authority for such an application in the case of Faulks v. Kamp (40 N. Y. Super. Ct. 70); but that decision is adverse-to the view of the subject which has been taken in the Supreme Court. (Longprey v. Yates, 31 Hun, 432; Blank v. Hartshorn, 87 id. 101; Lyke v. Post, 65 How. Pr. 298.) The case last cited is a Special Term decision, hut it is in harmony with the opinion in Velie v. Newark City Insurance Company (65 How. Pr. 1), from which the General Term of the fifth department quotes approvingly in Blank v. Hartshorn (supra). The order appealed from should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.