Opinion
May, 1904.
William Hepburn Russell, for the appellants.
Horace E. Deming, for the respondent.
We see no reason for interfering with the order of the court below except in one particular. By the 21st paragraph of the complaint it is alleged that in the spring of 1898 the plaintiff deposited with the defendants the sum of $2,600, and that he as agent for others made other deposits with the corporation, specifying the date of each deposit; that he decided to withdraw said deposits, and when about to serve a notice of such withdrawal upon the corporation he communicated to said corporation his decision and intention to withdraw said deposits, but was induced to refrain from that action by reason of certain alleged false representations made to him by the defendants in relation to the corporation. This allegation as to the communication of his intention to withdraw is indefinite in failing to specify the time when he had decided to withdraw his deposits, the date of his communication of that fact to the corporation, the officers to whom he communicated his intention, and the time that the representations which induced him not to withdraw the deposits were made, and to that extent, I think, the complaint should be made more definite and certain. The date of the communication of this intent to the officers of the corporation, and the officers to whom it was made, are quite material, as the liability of a defendant would depend upon his being a director and responsible for the representations at the time they were made.
It would be improper to compel the plaintiff, as a part of his cause of action, to set out in full the various certificates referred to in his amended complaint. If, after the action is at issue, it is important for the defendants to have an inspection of the certificates of deposit, the proper application would be for a discovery.
The complaint, we think, is not indefinite and uncertain as to the other instances to which attention is called. When the plaintiff alleges that he deposited the money for his children, giving the date, number and the amount of the certificates received as representing the deposits, all the information about the deposits necessary to enable the defendants to meet the allegations is given. It is entirely immaterial whether the deposits were made in the name of the children or in the name of the plaintiff for their benefit. The action is not brought to recover on the certificates, but for damages sustained in consequence of the alleged fraudulent representations by the defendants. The allegation in relation to the assignments as alleged in the 36th paragraph of the complaint is specific, and there can be no uncertainty as to the persons who made the assignment.
The order appealed from should, therefore, be modified by requiring the plaintiff to make the complaint more definite and certain in the particulars specified and in other respects denying the motion, without costs of this appeal.
VAN BRUNT, P.J., O'BRIEN and McLAUGHLIN, JJ., concurred.
Order modified as directed in opinion, without costs of appeal.