Peters v. Miller

| N.Y. App. Div. | Apr 19, 1912

Scott, J.:

The action is upon a promissory note. The complaint besides setting forth the consideration upon which the note was given, also contains allegations as to the circumstances under which it came into plaintiff’s possession, which are clearly inserted in anticipation of possible defenses. The motion was that the plaintiff be required to separately state and number the causes of action, the moving defendant erroneously considering that more than one cause of action was undertaken to be stated. The justice at Special Term did not grant this motion, but did require the complaint to be made more definite and certain considering that it was “ambiguous and misleading.” We are unable to discern any ambiguity or uncertainty about the pleading. It contains all the necessary and proper allegations in an action upon a promissory note. It contains other allegations which are not necessary to such an action. Whether they are proper or not it is not necessary to consider. Certainly they are unambiguous.

Furthermore, the motion was too late. (General Buies of Practice, rule 22.) The defendant had obtained an extension of time to “answer or otherwise plead” to the complaint. This did not operate to extend the time for making motions to correct the form of the complaint. (Sherman v. McCarthy., 90 A.D. 542" court="N.Y. App. Div." date_filed="1904-01-15" href="https://app.midpage.ai/document/sherman-v-mccarthy-5194455?utm_source=webapp" opinion_id="5194455">90 App. Div. 542.)

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.