50 How. Pr. 38 | NY | 1875
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The questions arising upon this appeal are purely legal and must be disposed of according to strict legal *199
rules. As to that portion of the order in relation to a bill of particulars, it is sufficient to say that it was a matter purely discretionary as was recently held by this court in the case ofTilton v. Beecher (
The complaint does not contain a separate charge for neglect and another for a conspiracy. It purports to give a history of the acts connected with the conspiracy, and therein it appears by way of narrative that the defendant and his associates were justly chargeable with negligence as well as fraud in the performance of their official duty. This clearly is not a separate and distinct claim for a neglect of duty upon which the action was based, but a statement of a fact auxiliary to and in aid of the general charge of conspiracy, by means of which the money was obtained. It may be regarded as a part of the alleged conspiracy and appropriately inserted in presenting its real character and as constituting a portion of the cause of action against the defendant. The question as to compelling an election therefore, between the charge of *200 conspiracy and the charge of neglect, does not arise. Even if it did the right to compel an election would also be a matter of discretion of the court to which the application was addressed.
The learned counsel for the defendant insists that the different acts of fraud referred to in the complaint and specifically stated in the schedule, should be stated separately in conformity with section 167 of the Code. In this, I think, he is entirely in error. This position is based upon the ground that each of the items constitutes a separate, distinct and independent transaction, and therefore each one of them forms of itself one cause of action. I am at loss to see how such can be the case in an action like the present any more than in a case where the action is brought upon an account composed of different articles furnished at different times and of various amounts. The pleader here alleges, that by virtue of an act of the legislature it was enacted that all liabilities against the county of New York should be audited by certain officers who were named, and be paid to the parties entitled to receive the same upon the certificate of said officers. That with the intent to cheat and defraud, the defendant Tweed and one Watson did unlawfully and fraudulently combine, conspire and agree together to procure false and pretended claims to be set up, allowed and paid in formal compliance with the said act. That these pretended claims, falsely alleged and purporting to be such liabilities of the county, amounting to over $6,000,000 as specified in the schedule annexed, which was made a part of the complaint, were in apparent formal compliance with the act, certified to have been audited and allowed when they were not examined or audited, and only one meeting of the board of auditors was ever held at which no accounts, claims or liabilities against the county were presented or considered, or any proceeding had thereat, except that a paper which is set forth was subscribed by said auditors. That said Watson, or his assistants, acted upon said pretended accounts or claims in the schedule and attached certificates to the same, and that *201 they were all false, fictitious and fraudulent and did not represent any liabilities against the county which were directed to be audited, provided for or paid within the meaning of the act. Some other allegations are made not material to be stated. As the complaint alleges that all the items set forth in the schedule were fraudulent and certified in pursuance of a general conspiracy, a statement in detail of each one separately would be unnecessary, and there is no rule of law which requires such detailed particularity in stating a cause of action of this character. At common law, in ordinary actions of assumpsit a general statement of an account comprehending numerous causes of action is regarded as sufficient. There is less reason for requiring a more particular statement under the Code, which was designed to simplify pleadings and would fail to accomplish its purpose if so great and tedious prolixity was demanded. Even although in an indictment under the strict rules applicable to criminal pleadings, separate counts are required for each item, this rule bears no analogy to a case where a cause of action arises embracing a large number of items. The auditing of each item of the entire claim did not constitute a single act of fraud of itself, which necessarily and for that reason must be prosecuted as a separate cause of action, but is one of a series of acts in connection with a general conspiracy alleged, which forms a part of the entire action and the whole demand of the plaintiffs.
The case of Forsyth v. Edminston (11 How. Pr. R., 409), which is cited, bears no analogy to the case at bar, and presents entirely different aspects. The question now presented did not arise, and none of the cases referred to are in conflict with the views expressed. It should be entirely clear upon a motion to the court to compel the plaintiff to make his complaint more definite and certain, that the pleading is insufficient, before the court should interfere, and unless such is plainly the case, the relief demanded should be refused. It is not apparent here that there was any defect in this respect, and as such applications are addressed very much to the discretion *202 of the court, the decision of the General Term is final, and no appeal lies therefrom, to this court. (Matter of Duff, 10 Abb. [N.S.], 416.)
It was not necessary that the interest of the city should be stated specifically, and it was quite enough to set forth that it had some right or interest in the premises.
From the observations made, and independent of any other considerations, it is evident that the decision of the General Term was made upon all the points presented in the exercise of a legal discretion existing in that court, and no legal right having been violated, it is not the subject of review in this court. (See Howell v. Mills,
The appeal should, therefore, be dismissed, with costs.
All concur; ALLEN and EARL, JJ., in result.
Appeal dismissed.