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20 Jones & S. 448

Baremore v. Taylor

The Superior Court of New York City

Decided December 7, 1885

The Superior Court of New York City · decided 1885-12-07

<p> Bill of particulars—when ordered. </p> <p>The complaint contained three claims, viz.: for work, labor and service of plaintiff’s assignor; for money had and received of plaintiff’s assignor; for money paid, laid out, and expended by plaintiff’s assignor. The answer consisted of a general denial as to each claim, and affirmative defenses; 1st. payment to plaintiff’s assignor for services rendered and moneys paid out; and, 2nd, that defendant had fully accounted for any moneys had and received for plaintiff’s assignor. It appeared without contradiction, that plaintiff, upon demand, had furnished defendant with a bill of particulars, and therein had given him credit for every payment known to plaintiff to exist, and that, without a bill of particulars from defendant, the plaintiff would be in complete ignorance of the sums of money,, items, dates, &c., by which defendant will attempt to prove his payments to, and accountings with plaintiff’s assignor. Held, that a case was presented which called for the discretionary power of the court within the rule laid down in Witkowski v. Paramore (93 W. Y. 467); Dwight v. Germania Ins. Co. (84 H. Y. 493); 'Diossy v. Rust (46 Super. Gt. 374) ; and the order requiring the defendant to furnish a hill of particulars was a proper exercise of the power conferred by § 631 of the Code of Civil Procedure.</p>

Relies on Witkowski v. . Paramore

Decided 1885-12-07

By the Court.—Freedman, J.

¶1The complaint alleges, three causes of action, viz.: 1st. Work, labor and services, of plaintiff’s assignor of the value of $1,800. 2d. Money had and received for -the use of plaintiff’s assignor,. $1,945.42. 3d. Money paid, laid out and expended by-plaintiff’s assignor at defendant’s request, to the amount, of $590.92.

¶2The answer consists of a general denial as to each of' the causes of action, and the defense that the plaintiff’s-assignor has been fully paid for any services rendered or moneys paid, laid out or expended, and that the defendant has fully accounted for any moneys at any time-received by him for account of the plaintiff’s assignor.

¶3Upon plaintiff’s motion for a bill of particulars concerning the alleged payments to, and accounting had. with plaintiff’s assignor, it was made to appear by the-affidavit of the plaintiff, that upon demand, he had furnished the defendant with a bill of particulars containing-the items and details of the causes of action set out in the complaint; that in such bill he had given to the defendant credit for every payment known to him to exist; that he has no knowledge or information as to the defendant having ever paid anything further than what he had been given credit for ; and that without a bill of particulars he will be in complete ignorance of the sums of money, items, dates, &c., by which the defendant will undertake-to prove his alleged payments to, and accounting had with, plaintiff’s assignor.

¶4*450These matters were not denied by any counter affidavit, and as it was apparent that the plaintiff could have no personal knowledge concerning the defendant’s alleged payments to, or the accounting had with, plaintiff’s assignor, a case was presented which called for the exercise of the discretionary power of the court within tho rule as laid down in Witkowski v. Paramore (93 N. Y. 467); Dwight v. Germania Ins. Co. (84 Ib. 493); Diossy v. Rust (46 Super. Ct. 374).

¶5Under the circumstances as they appeared, the order requiring the defendant to give to the plaintiff a bill of particulars concerning the alleged payments to, and the accounting had with, plaintiff’s assignor, was a proper exercise of the power conferred, by section 531 of the Code of Civil Procedure.

¶6The order appealed from should be affirmed, with ■costs, &c.

¶7Sedgwick, Ch. J., concurred.

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