COURT OF APPEALS.

#### The People of the State of New York, respondents, agt. William M. Tweed, impleaded, &c., appellant.

*Decided November,*1875.

*Bill of particulars—pleading*— *matters of discretion.*

An order of the court below, granting or refusing a bill of particulars in an action, is purely discretionary and not reviewable here.

So, also, an order extending or refusing to extend the time to demur, is discretionary with the court below, and is not reviewable here.

If a charge of conspiracy and a charge of neglect are alleged in a complaint, the question as to compelling an election between them is a matter of discretion of the corut to which the application is addressed, and not reviewable here.

Where there are different acts of fraud referred to in the complaint, and which are specifically stated in the schedule attached, it is not necessary that they should be stated separately, in conformity with section 167 of the Code, where the complaint alleges that all the items set forth in the schedule were fraudulent, and certified in pursuance of a general conspiracy.

It should be entirely clear upon a motion to the court to compel the plaintiff to make his complaint more definite and certain that the pleading is insufficient, before the court should interfere, and unless such is plainly the case, the relief demanded should, be refused. Such applications are addressed very much to the discretion of the court below, and their decision at general term is final, and no appeal lies to this court.

*D. D. Field,*for appellant.

*W. H. Peckham,*for respondents.

Miller, *J.*

— The questions arising upon this appeal are purely legal, and must he disposed of according to strict legal *39rules. As to that portion of the order in relation to a bill of particulars, it is sufficient to say that it was a matter purely discretionary, as was recently held by this court, in the ease of *Tilton*agt. *Beecher.*No question arises as to the burden of proof, which presents an exception which takes the case out of this general rule. The refusal of the court to extend the time to demur upon the decision of the appeal from the order of the special term was, also, a matter of discretion with the exercise of which this court should not interfere. The defendant could have demurred to the complaint in the first instance had he chosen to do so, and thus have presented the question as to whether the city was a proper party as well as such others as could properly arise in that form. As he sought by motion to have the pleading made more specific, he has no just ground for complaint that the court, in view of all the facts, compelled him to answer. Nor does the stipulation of the plaintiff’s attorney in any way affect the question, for it was superseded by the order of the special term, which gave the defendant time to answer or demur, &c., until twenty days after the service of the amended complaint. When that order was reversed on appeal, the court had full power to direct what terms should be imposed upon the defendant. The complaint does not contain a separate charge for neglect and another for conspiracy. It purports to give a history of the acts connected with the conspiracy, and therein it appears, by way of narration, that the defendant and his associates were justly chargeable with negligence as well as fraud in the performance of their official duty. This, clearly, is not a separate and distinct claim for. a neglect of duty, upon which the action was based, but a statement of a fact, auxiliary to and in aid of the general charge of conspiracy, by means of which the money was obtained. It may be regarded as a part of the alleged conspiracy, and appropriately inserted, in presenting its real character and as constituting a portion of the cause of action against the defendant. The question as to compelling an *40election, therefore, between the charges of conspiracy and the charge of neglect does not arise. Even if it did, the right to compel an election would also be a matter of discretion of the court to which the application was addressed. The •learned counsel for the defendant insists that the different acts of fraud referred to in the complaint, and specifically stated in the schedtiles, should be stated separately, in conformity with section 167 of the Code. In this, I think, he is entirely in error. This position is based upon the ground that each of the items constitutes a separate, distinct and independent transaction, and therefore each one of them forms of itself one cause of action. I am at a loss to see how such can Be the case in an action like the present any more than in a case where the action is brought upon an account composed of different articles furnished at different times and of various amounts. The pleader here alleges that by virtue of an act of the legislature it was enacted that all liabilities against the county of Hew York should be audited by certain officers, who were named, and be paid to the parties entitled to receive the same upon the certificate of said officers. That, with the intent to cheat and defraud the defendant, Tweed and one Watson did unlawfully and fraudulently combine, conspire and agree together to procure false and pretended claims to be set up, allowed and paid in forma] compliance with the same act. That these pretended claims, falsely alleged and purporting to be such liabilities of the county, amounting to over $6,000,000, as specified in the schedule annexed, which was made a part of the complaint, were in apparent formal compliance with the act certified to, have been audited and allowed, when they were not examined or audited, and only one meeting of the board of auditors was ever held, at which no accounts, claims or liabilities against the county were presented or considered, or any proceeding had thereat, except that a paper, which is set forth, was subscribed by said auditors; that said Watson, or his assistants, acted upon said pretended accounts of claims in *41the schedule and attached certificates to the same, and that they were all false, fictitious and fraudulent, and did not represent any liabilities against the county which were directed to be audited, provided for or paid, within the meaning of the act.

Some other allegations are made, not material to be stated. As the complaint alleges that all the items set forth in the schedule were fraudulent and certified in pursuance of a general conspiracy, a statement in detail of each one separately would be unnecessary; and there is no rule of law which requires such detailed particularity in stating a cause of action of this character. At common law, in ordinary actions of assumpsit, a general statement of an account comprehending numerous causes of action, is regarded as sufficient. There is less reason for requiring a more particular statement under the Code, which was designed to simplify pleadings, and would fail to accomplish its purpose if so great and tedious prolixity were demanded. Even, although in an indictment, under the strict rules applicable to criminal proceedings, separate accounts are required for each item, this rule bears no analogy to a case where a cause of action arises embracing a large number of items. The auditing of each item of the entire claim did not constitute a single act of fraud of itself, which necessarily and for that reason must be prosecuted as a separate cause of action, but is one of a series of acts in connection with a general conspiracy alleged, which forms a part of the entire action and the whole demand of the plaintiff. The case of *Forsyth*agt. *Edminston*(11 *How. Pr. P.,*409), which is cited, bears no analogy to the case at bar, and presents entirely different aspects. The question now presented did not arise; and none of the cases referred to are in conflict with the views expressed. It should be entirely clear, upon a motion to the court to compel the plaintiff to make his complaint more definite and certain, that the pleading is insufficient, before the court should interfere; and unless such is plainly the case the *42relief demanded should be refused. It is not apparent here that there was any defect in this respect; and as such applications are addressed very much to the discretion of the court the decision of the general term is final, and no appeal lies therefrom to this court *(Matter of Duff,*10 *Abb. [N.*S.], 416). It was not necessary that the interest of the city should be stated, specifically, and it was quite enough to set forth that it had some right or interest in the premises.

From the observations made, and independent of any other consideration, it is evident that the decision of the general term was made upon all the points presented, in the exercise of a legal discretion existing in that court; and no legal right having been violated, it is not the subject of review in this court *(see Howell*agt. *Mill,*53 *N. Y.,*335; *Livermore*agt. *Bainbridge,*56 *N. Y.,*72; *Tabor*agt. *Gardiner,*41 *N. Y,*232).

The appeal should therefore be dismissed with costs.

All concur; Messrs. Allen and Earl, JJ., concur in result.