Levin v. Levin , 157 Misc. 156 ( 1935 )

Taylor (George EL, Jr.), J.

As defendants’ motion to compel the plaintiff to serve a second amended complaint making the amended complaint more definite and certain as suggested (notice of motion dated October 9, 1935; Rules Civ. Prac. rule 102) was made within the time prescribed (Rules Civ. Prac. rule 105), the defendants are entitled to have said motion determined, notwithstanding the service of defendants’ answer, which did not constitute an abandonment of such motion. Former section 282 of the Civil Practice Act was heretofore repealed (Laws of 1932, chap. 224, in effect March 16, 1932). In addition, said former section had no reference to a motion of this character. (Shipley v. Schmitzer, 224 App. Div. 730, and cases therein cited.) The motion is granted as to items (a) and (b) in the notice thereof, and denied as to item (c). The plaintiff should plead whether the alleged agreement was in writing, and if so set forth a copy, or the substance, thereof. (See First Presbyterian Church v. Kennedy, 72 App. Div. 82, 84.) I am of opinion also that the “ other consideration ” alleged should be set forth in the pleading. (See Cooper v. Fiske, 44 App. Div. 531, 532.) As to item (c) the present pleading is sufficiently specific, for the contract as pleaded contemplates performance by the deceased within a reasonable time. (For principle see Simon v. Etgen, 213 N. Y. 589, 594.)

The motion is granted to the extent indicated and not otherwise. No costs. Settle order on notice.