Winchester v. Browne , 4 Silv. Sup. 486 ( 1889 )

Daniels, J.

The action has been brought to recover damages which the plaintiff alleges he has sustained by reason of transactions between himself and the defendant and others, at the instance and request of the defendant, by which he has lost, or been deprived of, a large amount of property. The facts from which the liability is alleged to have followed are clearly set forth in the complaint, so far as they appear to be material to the plaintiff’s cause of action. There is no uncertainty as to th^description of the circumstances relied upon to create the liability, and from their perusal there seems to be no difficulty whatever in definitely understanding the entire purpose of the plaintiff as the complaint has been framed. It is only when allegations are so indefinite and uncertain that the precise meaning and application thereof is not apparent that the court has been authorized, by section 546 of the Code of Civil Procedure, to direct the statements to be made more definite and certain by amendment. The object of the system of pleading which has been devised was to require a plain statement of the facts in such language as would enable the defendant to understand what was designed to be alleged against him as the ground of his liability, and that has been accomplished by the allegations which are contained in this complaint. There is no uncertainty as to the material circumstances, or the manner in which the plaintiff asserts himself to have been injured in the transactions mentioned and set forth, and the court was accordingly right in denying the motion to make the complaint more definite and certain.

There were no such irrelevant allegations or statements inserted in the complaint as would justify an order to strike them out. Whatever has been alleged is pertinent to the case intended to be presented, and allowing the allegations to stand as they have been made in the complaint will produce no disadvantage or injury whatever to the defendant. How far the evidence will be found to be material to the plaintiff’s alleged right of action included int these allegations will be better determined at the trial than upon a mere motion of this description. It will be a source of no trouble or confusion in the action to leave the complaint as it has been framed.

In Nealis v. Lissner, 5 N. Y. Supp. 682, the allegations which were stricken out were disconnected with the cause of action which.was relied upon to sustain the action. No allegation was excluded from the pleadings in that instance which, in any probable view, would become important upon the trial; while in this ease all the facts which have been alleged by the plaintiff will be-pertinent to the inquiry intended to be set on foot in the action.

The order from which the appeal has been taken was right, and it should, be affirmed, with $10 costs and the disbursements.