Opinion
May 3, 1918.
Manfred W. Ehrich of counsel [ Howland O. Walter with him on the brief; Ehrich, Wheeler Walter, attorneys], for the appellant.
Samuel F. Moran of counsel [ Ingraham, Sheehan Moran, attorneys], for the respondent.
On the former appeal we stated that the complaint was indefinite and uncertain in that it alleged that the defendant Powers guaranteed the indebtedness of the Warner's Features, Inc., by various agreements in writing, without alleging the substance of any of them. We reversed the order denying the motion to make the complaint more definite and certain, and granted the motion requiring plaintiff to amend the complaint by alleging in letter or substance the agreements referred to in the 5th paragraph of the complaint. ( 171 App. Div. 406.) The plaintiff thereupon amended his complaint omitting all allegations of the legal effect of the agreements, and referring to copies thereof annexed to the complaint. Unless the issue tendered can be gathered from a reading of the instrument, as for instance when the cause of action is predicated upon an instrument for the payment of money only (Code Civ. Proc. § 534), the pleader should determine in his own mind the legal effect of the written contract or other document upon which his cause of action is founded, and plead its legal effect as he understands it and as he purposes to maintain it, even though a copy be annexed. If merely a copy of the instrument is set forth it leaves uncertain the issues intended to be tendered. In the instant case this uncertainty is made evident by the fact that the contract annexed to the complaint and marked Exhibit C is ambiguous. Without evidence of the surrounding circumstances or parol evidence tending to show the purpose and intent of the parties, it is impossible to say whether the guaranty would apply to the indebtedness for which the action was brought, or was limited to the indebtedness specifically mentioned in that instrument. Considering the contract as part of the complaint, the pleading partakes of the same ambiguity that there is in the contract. Therefore, the pleader must put some definite construction upon it. Facts must be alleged, which would have to be proved, that tend to establish the defendant's liability for the debt. As the complaint now stands, it is so indefinite and uncertain that the defendant cannot safely answer it. The uncertainty is such that it cannot properly be obviated by a bill of particulars, as we pointed out on the former appeal (p. 408). Nor can it be obviated by an order to make the complaint definite and certain, because the defect is not that such allegations as are made are indefinite in their statement, but that the statements lack facts which are necessary to constitute a cause of action. Demurrer was, therefore, the proper remedy.
The order will be affirmed, with ten dollars costs and disbursements, and plaintiff given leave to serve an amended complaint within ten days from service of a copy of the order with notice of entry thereof and upon payment of costs to date.
CLARKE, P.J., SMITH, DAVIS and SHEARN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to amend on payment of costs.