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SECTION III.

MOTION TO MAKE MORE DEFINITE AND CERTAIN.9

FORMS.

1088. Notice of motion to make a

pleading more definite and
certain.

1089. Order that pleading be made

more definite and certain.

FORM No. 1088. Notice of motion to make a pleading more definite and certain.10 [As in Form 815, p. 1171, of this volume, omitting the matter in brackets following the t, and substituting for the italic clause between the I and the folowing:] requiring the complaint [or, answer] herein to be made more definite and certain [here either designate the particular clauses believed to be indefinite and uncertain, or state the respects wherein more definiteness and certainty is required, as thus:101] by showing the kind, character, amount and value of merchandise stated by the plaintiff to have been shipped to defendant.

9 Matters of time, place and circumstance, unless they constitute material parts of the cause of action or defense, are strictly within the province of a bill of particulars, and must be obtained by that method. See Smith v. Irvin, 45 Misc. 262, 92 N. Y. Supp. 170; Dumar u. Witherbee, 88 App. Div. 181, 84 N. Y. Supp. 669; Kavanaugh . Comm. Tr. Co., 45 Misc. 201, 91 N. Y. Supp. 967, and cases cited. But dates of execution and delivery of a writing are part of the instrument, and omission results in indefiniteness. Pigone v. Lauria, 115 App. Div. 286.

The practice of uniting a motion to make more definite and certain with an application for a bill of particulars, in the alternative, disapprored. Kavanaugh 1. Com. Tr. Co., supra. The distinction between the two motions is well stated in Mullen r. Hall, 51 lise. 59.

10 Move within twenty days after service of the pleading objected to, and before roticing for trial, and be. fore answering. demurring or reply ing to the pleading, or obtaining any

extension of time to do so, unless the right to move be reserved therein. N. Y. Gen. Rule, 22; see p. 1374 and notes. De Carillo 1. De Carillo, 53 Hun, 359, 6 N. Y. Supp. 305; Williams v. Folsom, 57 Hun, 128, 10 X. Y. Supp. 893.

If order to show cause is asked, add allegations under N. Y. Gen. Rules; see p. 1172.

If defendant moves make affidavit of merits. Bingham v. Bingham, 1 Civ. Pro. Rep. 166. See Form 1031.

10a In analogy to the practice on special demurrer, for which this motion is a substitute, the notice should point out the defects of the pleading as distinctly as possible. Nineteenth | Ward Bank v. Manh. Ry. Co., 56 App.

Div. 618, 67 N. Y. Supp. 598; Gilmore v. Norton, 10 Kans, 491: Kerr 1. Reece, 27 id. 338; O'Connor 1. Koch, 56 Mo. 253; Carney 1. Bernheimer, 3 Monthly L. Bul. 22; Truesdell r. Hull, 35 Minn. 468, 29 N. W. Rep. 72, Nischke 1. Wirth, 66 Wis. 470, 29 N. W. Rep. 342. See, also, Pope Mfg. Co. 1. Rubber Goods Mfg. Co., 100 App. Div. 353, 91 N. Y. Supp. 826.

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[Or, thus: by alleging whether the agreement referred to in the complaint was oral, or in writing, and if in writing to allege its substance.]"

[Or thus: by describing particularly, by metes and bounds, the premises mentioned therein.]

(Or, by setting forth any provisions of the charter of the Illinois and St. Louis Bridge Company, and any provisions of the laws of the States of Illinois and Missouri respectively, by or under which it is claimed by the plaintiff that the stockholders of said company are severally liable as alleged in such subdivision of said complaint.]

Or, by stating the nature and grounds of the alleged indebtedness of the defendant to the plaintiff.]

[Or, by showing what allegations of the complaint are denied.] 12

[Or, by showing what were the causes and reasons for the plaintiff's discharge from employment other than those particularly specified in the said answer.] 13

FORM No. 1089. Order that pleading be made more definite and certain. [Caption (court order) and recitals14 as in Form 820, p. 1174, of

this volume.] ORDERED, 1. That within days after service of a copy of this order upon the [plaintiff's] attorney, the [plaintiff] serve upon the [defendant's] attorney a copy of the complaint [or, answer] amended [here state in what respect; see preceding Form].

11 The complaint need not disclose whether an agreement was or was not in writing, although its terms bring it within the statute of frauds. Marston v. Swett, 66 N. Y. 206. But defendant is entitled on motion to require the complaint to be made more definite and certain as stated in the notice above. First Presb. Churche. Kennedy, 72 App. Div. 82, 76 N. Y. Supp. 284.

12 A denial of “ each and every material allegation” is properly required to be made more definite. Moody v. Belden, 15 N. Y. Supp. 119, 21 Civ. Pro. Rep. 89. | A denial which was in the form of a negative pregnant was held to be

frivolous, and a motion to make it more definite and certain denied, in Kelly v. Sammis, 25 Misc. 6, 53 N. Y. Supp. 825. The correctness of this decision is doubtful. See Stuber v. McEntee, 142 N. Y. 200, 206.

13 From Cooper v. Fiske, 44 App. Div. 531, 60 N. Y. Supp. 944, where the answer, after pleading some grounds justifying the discharge, added “and other causes."

14 If the party against whom the motion is made stipulates in open court in a manner to defeat the motion, see that the recitals carefully set out the stipulation. See Van Tassell v. Beecher, 8 Misc. 26, 28 N. Y. Supp. 73.

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2. That within [the same time] the plaintiff pay to the [de fendant's] attorney dollars costs of this motion.

3. That in default of such service and payment the following allegations of the complaint (or, answer] be stricken out: [specify].15

[4. Meanwhile let all further proceedings by the plaintiff be stayed.]

5. That the time for the [defendant] to answer [or, reply], demur, or take such other action as he may be advised, is extended until the expiration of twenty days after such amended (complaint] shall have been served on his attorney.10

Enter: [signature of judge by initials of name and title.]

SECTION IV.

MOTION TO STRIKE OUT A PLEADING OR MATTER THEREFROM.

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I. STRIKING OUT PLEADING FOR CONTEMPT.

FORM No. 1090. Order striking out pleading for refusal of a party to obey an order of the

court.17 At a Special Term [etc., as in Form

820, p. 1174]. [Title of action.] An order having been made by Mr. Justice

, in this action, on the day of , 19, requiring the [plaintiff] [state order and refusal, as thus] to appear on the day of , 19 , o'clock (A.] m., and be examined as a witness herein, and give his deposition, at the instance of the [defendant), pursuant to the Code of Civil Procedure. And the said (plaintiff] having appeared, and having given certain testimony, and the matter having been adjourned from time to time until this day, and the following question among others having been propounded to him, viz. [stating question].

And the said (plaintiff] having refused to answer said question, and thereafter a motion by [defendant] to compel said (plaintiff) to answer said question having been made and heard before Mr. Justice , and he having decided that the [plaintiff] must answer said question which has been propounded, and the same question being again propounded, and the witness having stated, in answer, as follows [stating evasive answer or refusal], and having declined to give any other answer, and the court haring decided that said answer was evasive, and that the plaintiff must disclose the [constituent parts of said remedy), and the plaintiff having refused to answer further, and the defendant having moved that the plaintiff's complaint be dismissed, and after reading and filing the evidence taken herein, and the complaint and answer, and the order of Mr. Justice

, of , 19 , and the affidavit of L. A. C., dated the day of , 19, on which said order was founded, and after hearing A. G. H., Esq., of counsel for the defendant, and J. S. W., Esq., for the plaintiff, and due deliberation having been had; now, on motion of the defendant's attorney:

17 Sustained in Richards v. Judd, 15 Abb. Pr. (N. S.) 184, a case of refusal to answer on examination before trial; S. P., Walker v. Walker, 8 Abb. N. C. 436, 82 N. Y. 260 (neglect to pay alimony, see p. 1340 of this vol ume); S. P., Gross v. Clark, cited on

p. 1409 of this volume, as to neglect to serve bill of particulars.

It is doubtful whether the court has the power to strike out the de. fendant's answer as punishment for such contempt. See notes to Form No. 1007.

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ORDERED, that the plaintiff's complaint herein be and the same is hereby stricken out, and that this action be and the same is hereby dismissed, 18 with costs.

Enter: [signature of judge by initials of name and title.]

II. STRIKING OUT PLEADING AS SHAM, ETC.19

FORM No. 1091. Affidavit to move to strike out sham answer or defense.20 [Title of court and action.] [Venue.]

A. B., being duly sworn, says:

I. That he is the plaintiff herein [or state connection with the cause, means of knowledge, etc.].

II. That he has read the answer of the defendant Y. Z. herein, and that the defense of [payment] therein set up is wholly and

18 The language of the statute as to examination before trial only contemplates “striking out the pleading." The practice has been, in the case of plaintiff's refusal, to add that the complaint be dismissed.

19 A defense is sham when it is so clearly false in fact as that it does not in reality involve any matter of substantial litigation, i. e., false in the sense of being a mere pretense set up in bad faith without color of fact. Goodwin v. Thompson, 88 Hun, 598, 34 N. Y. Supp. 769. There should appear some fact or facts, outside of affidavits showing or tending to show the falsity of the answer, which indi. cates bad faith. Albany Co. Bank v. Rider, 74 Hun, 349, 26 N. Y. Supp. 490. A sham answer or defense may not be stricken out, unless its falsity be made to appear beyond a reasonable doubt. Zimmerman v. Meyrowitz, 77 App. Div. 329, 79 N. Y. Supp. 159, 12 Anno. Cas. 271.

Á mere repetition by the defendant, in his opposing andavit, that the statements in his answer are true, but not in any way directly answering the statements in the moving affidavits, adds nothing to the answer and is wholly unsatisfactory. First Nat. Bank v. Slattery, 4 App. Div. 421, 38 N. Y. Supp. 859.

20 A verified general denial cannot be struck out as sham. Wayland v.

Tysen, 45 N. Y. 281. Nor can a verified denial of a material and essential allegation of the complaint. Roby v. Hallock, 5 Abb. N. C. 86, 55 How. Pr. 412; Colt v. Davis, 50 Hun. 366, 3 N. Y. Supp. 354, 16 Civ. Pro. 180.

The rule seems to be the same, whether the denial be general or sp -cific, on knowledge or on information and belief, or a denial of any knowi. edge or information sufficient to form a belief — in other words, a denial in any one of the forms authorized by the Code, and either in an action at law or in equity, cannot be stricken out as sham. See Schlesinger 0. Wise, 106 App. Div. 570, 94 N. Y. Supp. 721; Thompson 1. Erie Ry. Co., 45 N. Y. 468; Humble v. McDonough, 5 Misc. 508, 25 N. Y. Supp. 965; Gallagher v. Merrill, 13 App. Div. 182, 43 N. Y. Supp. 303; Wilson v. Eastman, etc., Co., 56 Hun, 194, 9 N. Y. Supp. 189; Robert Gere Bank 1. Inman, 51 Hun, 97, 5 N. Y. Supp. 457, aff’d on opinion below, 115 N. Y. 650; Alexander v. Aronson, 65 App. Div. 174, 72 N. Y. Supp. 640; Ginnell r. Stayner, 71 App. Div. 540, 75 N. Y. Supp. 887.

A counter-claim cannot be stricken out. Baum's Castorine Co. t. Thomas, 92 Hun, 1, 37 N. Y. Supp. 913; First Nat. Bank v. Slattery, 4 App. Div. 421, 38 N. Y. Supp. 859.

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