#### Abbie Lasher, Appellant, *v.*Thomas F. McDermott, Executor, etc., of Rose Quest, Deceased, Respondent.

Third Department,

May 6, 1914.

Pleading—action to recover alleged gift made by testatrix — answer — denials on information and belief.

Where in a suit against an executor to recover real and personal property alleged to have been given to the plaintiff by the testatrix in her lifetime, the defendant admits certain allegations of the complaint, but as to others denies that he has any knowledge or information sufficient to form a belief, the plaintiff is not entitled to an order to compel the defendant to make the defense more definite and certain, for it fulfills the requirements of the Code of Civil Procedure.

*233Appeal by the plaintiff, Abbie Lasher, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 24th day of December, 1913, denying plaintiff’s motion for an order requiring the defendant to make his answer more definite and certain.

*Charles B. Templeton,*for the appellant.

*Pierre E. Du Bois, for*the respondent.

Woodward, J.:

The complaint alleges a cause of action against the defendant, as executor of the last will and testament of Rose Quest, deceased, and plaintiff claims to be entitled to a judgment for the value of a certain house and lot and certain household furniture, it being claimed that the testatrix in her lifetime agreed to give to the plaintiff this property, by her will, in consideration of the performance of services as a nurse and attendant during her last illness. The defendant’s first separate defense admits certain allegations of the complaint, and “as to each and every other allegation of the complaint the defendant denies that he has any knowledge or information sufficient to form a belief.” The plaintiff moved for an order of the court to compel the defendant to make this defense definite and certain, and this motion having been denied, appeal is made to this court.

We áre clearly of the opinion that the order appealed from should not be disturbed. The answer is sufficiently definite and certain to raise an issue. It admits certain facts, and puts in a general denial as to the remainder, and this is all that the Code of Civil Procedure requires. Whether the denial of information and belief is sufficient is a question of law to be determined upon the trial, but is not properly to be tested by a motion to make definite and certain. “ The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty ” (Broom Leg. Max. [8th ed.] 187), and so it has been held that a pleading is not objectionable as ambiguous or obscure if it be certain to a common intent; that is, if it be clear enough according to rea*234sonable intendment or construction, though not worded with absolute precision. (Stephen Pleadings [6th ed.], 312.) Here the pleading follows the common form, and puts in issue the matters not denied, and there can be no question of its reasonable certainty.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.