101 N.Y.S. 435 | N.Y. App. Div. | 1906
The action was brought to recover the sum of $100,000. . The complaint alleges that “on o*r about November .27, 1901, the defendants jointly purchased three hundred shares of the capital stock of the Merchants’ Trust Company of New York, and,- for the purp&se of paying for the same, they borrowed, on that date, from the Central National Bank of the City of New York, through the defendant Fisher, the sum of - One hundred thousand dollars ($100,000), which it was agreed should be repaid upon demand, with interest from the same date; and the said sum so borrowed was applied by the defendants in payment of the purchase price of the said stock.” Upon motion of the defendant Munn the court below has required the plaintiff to make the complaint more definite and certain, first, “ by stating the nature and extent of the interest or " liability which plaintiff claims the defendant Munn had or was liable for in'the alleged loan.”’
The complaint alleges that the defendants borrowed the money. There is nothing indefinite or uncertain in this allegation.. The extent of the interest that the defendant had .in the loan is immaterial if the defendant borrowed the money. It is only when the allegation is so indefinite or uncertain that the precise meaning or application thereof is not apparent that the court is authorized to require the pleading to bé made definite and certain by amendment. (Code Civ. Proc. § 546.) Second, “ By stating in what capacity or relation the plaintiff claims that the-defendant Fisher represented, or was authorized to represent, act for or bind the defendant Munn with respect to the alleged loan, whether as agent, partner, joint venture or. otherwise, and" how this relationship or power was evidenced or
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
McLaughlin, Clarke, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.