Hastings v. Thurston

10 Abb. Pr. 418 | N.Y. Sup. Ct. | 1860

Bonney, J.

—This motion is made under section 160 of the Code. The plaintiff, in his complaint, after showing his right, as the representative of creditors, to question the assignment, has set forth the whole assignment, with the schedules thereto, and then alleged that said assignment is fraudulent and void upon its face. The assignees (defendants) ask an order that this allegation be made more definite and certain, by stating why, or for what reason, said assignment is fraudulent and void. I have examined a great number of authorities to which reference was made on this point, but find no principle or decision which, in my judgment, requires or authorizes me to grant this part of the motion. The pleader must undoubtedly state all material facts, with proper definiteness and certainty. If he omit any material fact, his pleading is demurrable, and if his statement of it (the fact) is not sufficiently definite and certain, he may be required to amend. In this case the plaintiff has stated the circumstances under which the assignment was made, and set forth the whole assignment in its exact words, and then alleged that it is fraudulent and void on its face. This is merely raising a question of law; the legal conclusion at which the pleader has arrived upon the facts before stated. I do not see how it can be made more definite or certain without requiring him to state the points, arguments, and authorities upon which he expects to maintain this allegation, and this surely is not required by the Code.

The other portion of the complaint which defendants ask to have amended, is the charge immediately following the allegation that the assignment is fraudulent on its face—that it was made with intent to hinder, delay, and defraud creditors; and, in my opinion, the observations in relation to the preceding allegation apply with equal force to this charge. With what effect the assignment was made is certainly a question of fact, to be sustained only by proof of other facts so stated in the complaint, as to authorize proof in relation to them. By what amendment this charge of intent can be made more definite or certain, I cannot see. Whether or not the facts, by proof of which the plaintiff expects to substantiate it, are sufficiently stated, is not now before me. • The intent itself appears to me to be stated with all the certainty and definiteness of which it is susceptible.

Motion denied, with $10 costs.