Michie v. Slayback , 148 N.Y.S. 890 ( 1914 )

McLaughlin, J.:

The defendants moved to compel plaintiff to make the complaint more definite and certain and to separately state and numher causes of action. The motion was denied and defendants appeal.

It is difficult to tell from the complaint what cause or causes of action the pleader attempted to set forth. There are allegations appropriate to an action for money had and received; conversion, and fraud and deceit. If it be considered an action for money had and received, then the words italicized with the asterisk underneath are irrelevant; if to recover for conversion, then the words italicized with the broken dash underneath are irrelevant; and if an action for fraud and deceit, then the words italicized with the solid dash underneath are irrelevant.

The complaint alleges, in substance, that one E. Eickards Michie paid to the defendants $10,000, money of the plaintiff, which they agreed to “hold * * * to the credit of this plaintiff, to be by them returned to her upon demand; ” that plaintiff, prior to the commencement of the action, demanded the return of the money thus delivered, and defendants neglected and refused to return the same.

Then follow allegations that “the defendants wrongfully and contrary to their agreement * * * and without the knowledge, consent or authority of this plaintiff * * * used said monies in the purchase and sale of securities upon the New York Stock Exchange upon margin and lost said moneys and all thereof.”

It also alleges that the defendants stated and represented to E. Rickards Michie that they had close business and social relations with two men prominent in financial circles, and by reason thereof they could obtain inside information from them in respect to the movement of prices of securities on the Exchange, and defendants could make large profits for the plaintiff, and could double her money in two weeks; that such statements and representations of defendants were false and untrue, and were known by them, when made, to be false and untrue; that they were made for the purpose of inducing plaintiff to deposit the moneys referred to with the defendants; and she, acting through E. Rickards Michie, relied upon such statements, and, believing them to be true, paid the money to the defendants.

It would be grossly unfair to compel the defendants to go to trial with such a complaint. If the plaintiff intended to plead three separate causes of action, then she should so state and number them in her complaint. If only one cause of action is intended to be pleaded, then the allegations as to the others are clearly irrelevant and should be stricken out. In any view defendants are entitled to know just what they must meet at the trial. (Madison Real Property & Security Co. v. Hutton, 155 App. Div. 891.) The motion should, therefore, have been granted to the extent indicated by requiring the complaint to • be made more definite and certain, and directing plaintiff, if she seeks to plead alternative causes of action, to separately state and number them.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days on payment of the costs in the action, including those hereby awarded to be taxed.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, motion granted to extent indicated in opinion, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of costs in the action, including those hereby awarded to be taxed. Order to be settled on notice.