Kelly v. Kelly , 68 N.Y. St. Rep. 133 ( 1895 )

Gildersleeve, J.

. -This is a motion (1) to strike out the third defense of the amended answer, as sham; and- (2) to make more definite and certain a portion of the second further and separate defense set up in said amended answer. The defense which is claimed to be sham sets forth a former marriage of the plaintiff, stated to be álleged on information derived from the plaintiff herself. The rule is well established that a pleading on information and belief should not be stricken out, as sham, unless it clearly appears that there could not have been any information or belief (see Webb v. Foster, 45 N. Y. Supr. Ct. 311), and that the defense must be false, in the sense of being a mere pretense, set up in bad faith, and without color of fact (see Kiefer v. Thomass, 6 Abb. Prac. [N. S.] 42). It does not seem to me that the motion herein meets the requirement of this rule.

With regard to the motion to make more definite and certain the allegation that “ during the year 1894, prior to the 19th day of December, 1894, the plaintiff, without the connivance, consent, privity, or procurement of this defendant, had sexual intercourse with some man or men whose name or names are at the present time unknown to this defendant, but that such sexual intercourse took place in the city of New York,” by stating the places and dates when and where such sexual intercourse was had. It seems to me that plaintiff has mistaken her remedy. Instead of making this motion she should have applied for a bill of particulars. If, looking at the pleading, the court can see with ordinary certainty the meaning of the allegation, and the defense intended to be set up thereby, the pleading will be held sufficient to resist a motion to make it more definite. See Cook v. Matteson, 33 St. Rep. 497. A bill of particulars is the appropriate remedy where a party seeks to be fully apprised of the particulars or circumstances of time and place of the matter set forth in his opponent’s pleadings. See Durant v. East River Electric Light Co., 18 St. Rep. 934. For the reasons above stated the motion must be denied, with $10 costs, to abide the event.

Motion denied, with $10 costs, to abide event.