Summary
In Hooper v. City of New York (96 Misc. 47), also cited by the petitioner, the relief was granted so that the answer would conform to a complaint for the same cause of action, the matters not stated being material to such a cause of action under the provisions of the Code of Civil Procedure, again differing materially from the matter under consideration.
Summary of this case from Matter of MechlerOpinion
June, 1916.
Francis J. Byrne, for plaintiff.
Lamar Hardy, corporation counsel (John J. Mead, of counsel), for defendant City of New York.
This action is brought under section 1638 of the Code of Civil Procedure. The complaint sets forth plaintiff's claim and gives with specification the manner in which she acquired her title, as required by section 1639. The answer of the city, in addition to denying the material allegations of the complaint, pleads as a defense that the city has title to the property involved, and demands judgment barring the plaintiff from possession and adjudging that the city is entitled to possession. Paragraph 8 of the answer reads as follows:
"8. That the sources from which The City of New York derives its title to such premises are the charters or patents granted to the freeholders and inhabitants of the Town of Gravesend, by the Colonial Governors of the Provinc (sic) of New York, pursuant to the authority in them vested by the Crown and Parliament of Great Britain, and also by virtue of the several constitutions and laws of the State of New York."
This motion is to compel the defendant city of New York to make this part of its answer definite and certain, as provided by section 546 of the Code of Civil Procedure. That section applies to answers as well as to complaints. Rouget v. Haight, 57 Hun, 119. While at times there seems to have been some uncertainty when such motions were the proper remedy and when bills of particulars should be sought, the general rule is that a motion to compel an amendment of the pleading by making it definite and certain is the proper procedure, where the information sought is a material fact of the cause of action or defense. Warner v. James, 94 A.D. 257; Dumar v. Witherbee, Sherman Co., 88 id. 181, 184; Smith v. Irvin, 45 Misc. 262, 266.
In the case at bar the plaintiff asks that the dates of the charters be given and the specific reference to their recording. Section 1641 of the Code of Civil Procedure permits a defendant in an action of this nature to plead its title, but provides that it must do it "as in a complaint for the same cause of action." And section 1639 says a complaint must "set forth facts showing: 1. The plaintiff's right to the real property; whether his estate therein is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him."
The answer does not give with any definiteness the "source" of the city's title, or the "means" by which it "immediately accrued" to it. It says that defendant's title came through "charters or patents" granted "by the Colonial Governors of the Province of New York" and also "by virtue of the several constitutions and laws of the State of New York." Not a date is given, not a name is mentioned; no reference is made that would enable the plaintiff to know really what the city does claim. The language is about as broad and indefinite as could be imagined. What colonial governor granted the charter? Was it recorded? And where? What law of this state vested the city with title?
These and other matters should be stated. Whether the charter or patent was filed or recorded may be material upon the question of the validity of the city's title. It was the law of England that the crown could alienate only by recorded documents. The Duke of York's Laws, promulgated in 1664, provide for such a record. 1 Colonial Laws, 31, 62, 77. This provision was continued in force by the State Constitution. See New York C. H.R.R.R. Co. v. Brockway B. Co., 158 N.Y. 470. And the courts have recognized this difference between grants from the sovereign and from a private individual, holding that the former must be recorded to be valid. McKineron v. Bliss, 31 Barb. 180, 182; Bledsoe's Devisees v. Wells, 4 Bibb (Ky.), 329; New York C. H.R.R.R. Co. v. Brockway Brick Co., 10 A.D. 387, 389; affd., 158 N.Y. 470.
While no case has been found that relates to the Code sections in question here, or to the situation created by the city's answer, there are a number of authorities which justify and require the granting of this motion. It has been held that such a motion is proper to require a reply to state whether a judgment for costs (set up as a counterclaim) had been paid before or after suit was begun ( Bennett v. Lawrence, 71 A.D. 413); to require a complaint to set forth what regulations the defendant is alleged to have disregarded, and by whom they were made, which are charged as a basis of recovery in an action for negligence ( Harrington v. Stillman, 120 A.D. 659); to require a complaint to state the date or dates of publication in a libel action, so it might appear if more than one cause of action was pleaded ( Cerro de Pasco Co. v. Haggin, 106 A.D. 401) ; to require a complaint to state if the contract sued on was in writing, to enable defendant to plead the Statute of Frauds ( First Presbyterian Church v. Kennedy, 72 A.D. 82) ; to require a complaint to state if note sued upon was transferred to plaintiff before or after maturity ( McGehee v. Cooke, 55 Misc. 40); to require a complaint to state the specific real estate claimed to have been conveyed and the kind and quantity of personal property transferred ( Brinkerhoff v. Perry, 59 How. Pr. 156, note).
The language of section 1639 evidently intends that the source of the party's title should be given specifically. It would serve no useful purpose otherwise. If a statement that title came from the state or by act of the legislature, without giving any particulars, was a compliance with the provision, the latter would seem to be an unnecessary requirement. The object is to require the particulars of the title to be given. If the act of the legislature was a general statute, then that statute should be named. If it was a private act, then it should be pleaded as the Code provides. Code Civ. Pro., § 530.
Motion granted.