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Agnew v. Brooklyn City R. R. Co.




SS 481, 546.

Pleading— When complaint in action to recover damages resulting from

negligence, sufficiently definite and certain.

Where the complaint in an action for negligence, alleged that while the

plaintiff was in the act of crossing the street on the sidewalk, the driver of a street-car so negligently and carelessly managed his horse that it knocked her down and injured her,—Held, that its statement of the cause of the casualty was sufficiently plain and concise, and the court should not compel the plaintiff to state further by what act of commission or oinission the driver was negligent ; that a motion to make the complaint more definite and certain in this particular was

properly denied. A party cannot obtain his opponent's evidence by a motion to make his

complaint more definite and certain; but if he is entitled thereto, must seek it either under the provisions of the Code permitting an examination of a party before trial, or requiring the service of a bill of

particulars. (Decided June 27, 1887.)

Appeal from order of the special term denying a motion that the complaint be made more definite and certain.

The opinion states the facts.

Morris & Pearsall, for defendant-appellant.

Charles J. Patterson, for plaintiff-respondent.

Agnew o. Brooklyn City R. R. Co.

VAN WYCK, J.-This is an appeal from an order deny. ing a motion to have the complaint made more definite and certain.

The plaintiff, a child of five years, alleges that while she was in the act of crossing Sackett street, on the crosswalk, the driver of a one-horse street-car so negligently and carelessly managed his team that the horse knocked her down and injured her.

This is certainly a plain and concise statement of the facts constituting her cause of action, as required by Code Civ. Pro. $ 481. The defendant insists that under section 546, the court should compel her to state what act of commisson or omission of the driver was negligent. The meaning and application of the allegation are definite and certain. It distinctly states negligence in its management and control of the team,-viz., that the driver brought his horse in contact with this plaintiff, when, by the exercise of ordinary care, he could have prevented it. Plaintiff could not furnish in her pleading more information in relation to the fact thus set forth, unless she pleaded the evidence by which she expected to prove this fact.

This is never desirable ; the form of this complaint is to be commended. If the defendant makes out a case in which he is entitled to the evidence, or part of it, it ought to apply to provisions of the Code, allowing the examination of a party before trial or compelling the party to furnish a bill of particulars.*

We see no reason for disturbing the decision of the court below exercised in denying the motion of defendant (Reardon v. N. Y. C. Co., 5 N. Y. Super. 514).

Order should be affirmed, with $10 costs and disbursements.

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CLEMENT, Ch. J., concurred.

* See Tilton v. Beecher, 59 N. Y. 176 ; Brownell v. National Bk. of Gloversville, 13 N. Y. Weekly Dig. 371.

Estate of Battle.



SS 2281, 2286, 2552, 2555.

Contempt— When punishment discretionary— When order punishing

should be refused. A surrogate is not bound to grant an application to punish a party for

contempt in disobeying a decree of his court as of course, but should grant or deny it in his sound discretion, and this discretion he should never exercise in favor a delinquent executor or administrator who has been directed to make payments of moneys previously adjudged to be in his hands and who has disobeyed such direction, except under extraordinary circumstances. Mere inability to obey the decree should not shield him, particularly where the inability was occasioned by his dishonesty or willful misappropriation of funds committed

to him. [2] Cochrane o. Ingersoll (73 N. Y. 613); [1, 2] Matter of Snyder (34 Hun,

302; aff'd, 103 N. Y. 178) followed [, 3]. An administratrix will not be adjudged in contempt and punished

therefor, if, upon the facts as disclosed, she being actually in confinement for the contempt, and her discharge being sought on the ground of her inability to obey the directions of the court, her application

would be granted. [?] Where, upon an application to punish an administratrix for contempt for

failure to make payments out of the balance of an estate adjudged to be in her hands, it appeared that she was of the age of fifty-five years, and without means, and largely dependent upon charity ; that since the death of the decedent, her husband, she had been almost totally blind, and before the entry of the decree she had expended the small estate left by him; that she was driven to do so by dire want, and only did it upon the promise of her brother, which was not fulfilled, that he would restore such sums to her as were needed for her support,- Held, that an order should not be made punishing her con

tempt in not obeying the surrogate's decree. [8] Baucus v. Stover (89 N. Y.) followed. [6] The fact that a surrogate's decree that an administratrix has funds in her

hands is made conclusive by Code Civ. Pro. $ 2552, does not prevent

Estate of Battle.

her showing that she is without funds, in a proceeding to punish

her for contempt. [1, 2] (Decided May 22, 1887.)

Motion to punish an administratrix for her contempt in disobeying a decree directing the payment of money.

The opinion states the facts.

Boormaen & Hamilton, for petitioners and application.

B. D. Penfield, for administratrix, opposed.

Rollins, Surr.—This respondent Mary Battle, is the widow of the decedent and the administratrix of his estate. As such administratrix she filed an account in September, 1885, which was judicially settled by a decree of this court entered in July, 1886.

By that decree, she was ordered to make certain payments out of a balance of estate funds adjudged to be in her hands. This order she has not obeyed; and in behalf of six persons claiming to be aggrieved, to whom she was directed to pay in the aggregate the sum of $169.89, the surrogate is asked to imprison her for contempt.

Affidavits have been filed by her counsel alleging that she is of the age of fifty-five years ; that she is without means, and is largely dependent upon charity; that since the death of her husband in November, 1883, she has been almost totally blind; that before the entry of the decree of July, 1886, she had expended the small estate left by the decedent; that she was driven to this course by dire want, and only pursued it upon promise of her brother—a promise which he has not fulfilled and has been unable to fulfill--that he would restore to her such sums as she might be compelled to use for her support.

The proceeding is brought under section 2555 of the Code of Civil Procedure. That section declares that a decree of a surrogate may

maybe enforced in the manner

Estate of Battle.

therein prescribed. The Legislature has made use of this word “may

” in providing by section 1241 for the enforcement of judgments. [!] It was held by our court of last resort; upon appeal

from the supreme court of the second department, in Cochrane v. Ingersoll (73 N. Y. 613), that an application under section 1241 to punish for contempt a person who had willfully neglected or refused to comply with the direction of a judgment, was addressed to the discretion of the court in which such judgment had been recovered.

The supreme court, at special term, having refused, in the case just cited, to enforce its judgment by imprisoning the judgment debtor, its action was sustained on appeal. DYKMAN, J., pronouncing the general term opinion (13 lun, 368), referred to the provisions of section 20, title 13, chapter 8, part 3, Revised Statutes, 3 Banks' 6th ed. 811* (to the effect that a court which had directed the imprisonment for contempt of one who had failed to comply with its judgment might relieve the delinquent upon ascertaining that compliance was impossible), and approved Surrogate BRADFORD's suggestion in Doran v. Dempsey (1 Bradf. 490), that a state of facts which, pending one's imprisonment in contempt proceedings, would justify his unqualified discharge, would equally have justified the denial of an application for his commitment, if it had been brought, at the presentation of such application, to the attention of the court.

The doctrine was reiterated in Park v. Park (18 Ilun, 466); its correctness was subsequently questioned in Strobridge v. Strobridge (21 Id. 288), but seems to have been squarely sustained by the court of appeals in Cochrane v. Ingersoll (supra).

The statute above cited is no longer in force, but its provisions have been substantially re-enacted in section 2286 of the Code of Civil Procedure. It seems to me, therefore, that when the surrogate is asked to im

* 2 R. S. 538, 20.

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