10 N.Y.S. 895 | N.Y. Sup. Ct. | 1890
This action was brought to recover the sum of $10,000, to which the plaintiffs considered themselves entitled by reason of the treacher
There is still another objection to the success of this motion, namely, that the defendants have answered. An answer can have no other effect in reference to such a motion than to waive the right to make it. This must apply whether the complaint be amended or not, if the answer remain. The issues are framed when that pleading is put in and the preliminaries are closed. The allegations are not subject to the charge of indefiniteness. They are definite and certain. There can be no misunderstanding as to what is meant by them, and the evidence to sustain them cannot be called for. It may be said, indeed, that the defendants well know what is charged against them, and are desirous of ascertaining, if they can, the particulars of the proof by which they will be established. Besides, allegations of fraud are not required to be stated with great particularity. The array of facts and circumstances, but not minutely, is sufficient. Passavant v. Cantor, 21 Abb. N. C. 259, 264. The court may in some instances grant on a proper motion therefor a detailed statement, but not on such a motion as was made herein in such a case as this. A general statement, if comprehensive and complete, although it may in the proof involve details, cannot be arraigned as indefinite or uncertain. For these reasons the learned judge in the court below properly denied the motion, and it should be affirmed, with $10 costs, and disbursements of this appeal. All concur.