Bonta Hotel Co. v. Benedict

133 N.Y.S. 462 | N.Y. App. Term. | 1912

SEABURY, J.

The plaintiff appeals from an order granting defendant’s motion to' require the plaintiff to make its complaint more definite and certain by alleging whether the agreement referred to in the complaint is written or verbal, and; if verbal, the date of said agreement.

[1] The learned court below erred in making the order appealed from. The allegations of the complaint were sufficiently definite and certain. If the defendant desired further details, such details should have been furnished by a bill of particulars. It was within the office of a bill of particulars to supply the information which the defendant sought. Rouget v. Haight, 57 Hun, 119, 10 N. Y. Supp. 751.

[2] Moreover, it appears that a stipulation was entered into between the attorneys for the parties extending the defendant’s time to answer. This stipulation did not reserve to the defendant the right to make a motion in respect to the complaint. This stipulation was a waiver of the right to move to make the complaint more definite and certain. Post v. Blazewitz, 13 App. Div. 124, 43 N. Y. Supp. 59.

It follows that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.