Opinion
June 25, 1907.
G.B. Wellington [ Herbert F. Roy of counsel], for the appellant.
Hun Parker [ Lewis R. Parker of counsel], for the respondent.
In Dumar v. Witherbee, Sherman Company ( 88 App. Div. 181) this court, speaking through Mr. Justice CHASE, said: "It is better that the distinction between an order requiring a pleading to be made definite and certain and an order directing a bill of particulars should not be confused. When all that a party to an action really wants is a more particular statement of his opponent's claim for the purpose of narrowing the issues at the trial, or to prevent surprise, he should be required to make an application for a bill of particulars, and not be allowed to obtain an amended pleading on the theory that the precise meaning or application of the allegation is not apparent."
It is sometimes difficult to distinguish between the remedy by bill of particulars and the remedy to make a pleading definite and certain. Where the distinction clearly exists, however, it should be observed even though the result of either application would be the same. ( Rouget v. Haight, 57 Hun, 119; Jackman v. Lord, 56 id. 192.) One reason for observing the distinction is that a motion for a bill of particulars may be opposed with affidavits, whereas a motion to make a pleading definite and certain must be determined on the pleading alone. Another reason is that the insertion in a pleading of unnecessary details violates the rule of brevity, clearness and conciseness which is not only commendable, but is also commanded. (Code Civ. Proc. §§ 481, 500.)
The order herein confuses the proper distinction between the two motions. The allegations of the complaint as to the signals which the defendant failed to give and the rate of speed at which he was proceeding are not such as to be the subject of a motion to be made definite and certain. Not every indefinite or uncertain allegation in a pleading may be made the subject of such a motion, but only such an allegation as is so indefinite or uncertain "that the precise meaning or application thereof is not apparent." (Code Civ. Proc. § 546.) No one can fail to understand the "meaning" of the allegations as to the signals and the rate of speed; and the "application" of those allegations to the cause of action here alleged is that they are in and of themselves evidence of negligence. If the defendant is entitled to the details of the facts thus alleged he should ask for a bill of particulars.
I think, however, that the allegation in the complaint as to the rules and regulations which defendant is claimed to have disregarded is not stated with sufficient definiteness and certainty. It is not apparent how such allegation demonstrates negligence; and hence it has no "application" to the cause of action alleged unless it further appears what such rules and regulations were and by what authorities they were promulgated. To that extent such allegations should be made definite and certain.
The order under review is much too drastic in directing that for a failure to comply with its provisions the entire complaint be stricken out. If the allegations required to be made definite and certain were stricken from the complaint sufficient would remain to constitute a good cause of action.
The order should, therefore, be modified so as to require that the complaint state specifically the rules and regulations therein referred to and the authorities by whom they were made and promulgated, and on failure to comply with such requirement the allegation as to such rules and regulations should be stricken from the complaint, and as so modified said order should be affirmed, without costs.
All concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs.