Scheftel v. Virginia Hot Springs

Present— Van Brunt, P. J., O’Brien, McLaughlin, Hatch and Laughlin, JJ.; Hatch and Laughlin, JJ., dissenting. The following is the opinion of Dugro, J., delivered at Special Term:

Dugro, J.:

The plaintiff concedes that in such a case as his a cause of action may be based upon contract or tort, and defendant claims that it is uncertain whether plaintiff claims upon either or both. Plaintiff states that-he claims upon tort. It seems to me, in view of the words used by the plaintiff in stating his cause of action, that he should make his complaint definite by alleging therein which he states in his brief, i. e., that his that action is upon tort. Motion, so far as it is to obtain this relief, granted. Order to be settled on notice.