(dissenting). I am of the view that-the tidal court committed no- error -in overruling the- demurrer. The complaint is indefinite and uncertain as to the matter of time, but that is- not a ground for general demurrer. It should have been attacked by a -motion to make more definite or by a motion for a bill of -particulars. 2 Wait's Prac. 486. Prindle v. Caruthers, 15 N. Y. 425; Rev. Code Civ. Pr. § 137. The majority opinion contains this language:
“Of course, under the allegations of t-he complaint, it is possible that some, or even all, of the acts complained of may have occurred after the bond was executed; but, on the other hand, it is just as -possible that all the acts complained of occurred prior to the execution of the bond, and for which appellant would not be liable.”
Under this state of affairs, I am- of the view that the demurrer was properly overruled. If the allegations are susceptible to two constructions, one constituting a valid cause of action and the other not, a motion, and not a demurrer, is the proper remedy. Stieglitz v. Belding, 20 Misc. Rep. 297, 45 N. Y. Supp. 670; Hart v. Neillsville, 125 Wis. 546, 104 N. W. 699, 1 L. R. A. IN. S.) 956 4 Ann. Cas. 1085. The test, under the reform code *200.system, is, will the language used, under any reasonable construction, sustain any part of the cause of action? Emerson v. Nash, 124 Wis. 369, 102 N. W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944; Hall v. Bell, 143 Wis. 296, 127 N. W. 967. The question here presented is not within the rule held in Clyde v. Johnson, 4 N. D. 92, 58 N. W. 512, where the occurrence of a fact at some particular time was material and necessary to the cause of action or defense alleged. In that case there was entire absence of allegation as to particular time. In the case present there is an allegation as to time, but the allegation covers time not covered by the obligation which is the subject of the cause of action, but it also covers time which is covered 'by the obligation alleged. It is not material on what particular day during the existence of the obligation sued on airy defalcation might have taken place. As stated in the majority opinion, under the allegations of -this complaint, the whole of the acts complained of might have taken place after the bond was executed. That being true, any acts constituting a breach of the conditions of the bond, occurring after its execution, were properly admissible in evidence under this complaint. The ancient illiberal and technical rule that a pleading is to be construed most strongly against the pleader where it is susceptible of two constructions, one sufficient and the other not, has been abrogated .by the modern reform system of Code Procedure. Emerson v. Nash, supra: Laun v. Kipp, 155 Wis. 347, 145 N. W. 183; Morse v. Gillman, 16 Wis. 504. Justice Smith in his concurring opinion uses this language:
“Suppose, then, that plaintiff had shown conclusively, by evidence, that a defalcation had occurred, but had wholly failed to show that it occurred within the bonded period — would it be entitled to a judgment? Clearly not.”
I fully agree with that proposition, for under that supposition the matter of time would be reduced to a conclusive certainty. If the complaint in question contained no statement as to the time of the alleged defalcation, it would be clearly bad. But that is not the fact in this case. There is a surplus of time alleged in this case. What I am contending for is this: That under the complaint in question, in the absence of a motion to make the same more definite, the plaintiff would have been entitled, on the *201trial, to -have introduced evidence showing that the defalcation, if any, occcurred zuithin the bonded period. The only question here ■is the construction to be placed upon a pleading — not a question of practice at all. It is a question of whether or not evidence might properly have been introduced showing' the defalcation alleged to have, been .at a time covered by the bond. The test of the sufficiency of a complaint is, Can evidence, sufficient to make out a prima facie case, be properly admitted thereunder ? If plaintiff, under this complaint, had obtained a judgment on default, it would have been valid, as the presumption would then have been that the defalcation occurred during- time covered by the bond. The judgment of the trial court should be affirmed.