Ross v. Willett ( 1891 )

Ingraham, J.

The order of Mr. Justice Barrett required the plaintiff to make his complaint more definite and certain.by stating the particulars of agreement referred to in paragraph 3 in the first cause of action, showing what were the provisions thereof in respect to the sale of the cargo of sugar. If there was no express provision in the contract as to the sale of the said sugar, the plaintiff can comply with Mr. Justice Barrett’s order by alleging that the contract did not provide in express terms for the sale of the sugar. Such an allegation would be a compliance with the order. By the fourth paragraph of the amended complaint the plaintiff, instead of alleging that the agreement did not expressly prpvide for the sale of the sugar, alleges that it was not provided that said sugar should be sold at any particular time, or in any particular mode or manner, or by any particular person or persons. What the plaintiff must allege is either the terms of the agreement which provided for the sale, or allege that the agreement did not expressly provide for the sale. Either of those allegations would be a compliance with that order. The same remark applies to the second cause of action. I do not think, therefore, that the amended complaint complies with the order of Mr. Justice Barrett, and plaintiff’s motion to compel the defendant to receive the amended complaint as served is denied, with $10 costs to abide the event; the plaintiff to be allowed, however, to serve within 20 days an amended complaint, as indicated in this memorandupn, upon payment of $10 costs to the defendants for opposing this motion.