Smith v. Irvin — 116 A.D. 359

Majority

p. 359

Mary I. Smith and Ethel Van Bergen, Respondents, v. Mary M. Irvin, Individually and as Surviving Executrix of Richard Irvin, Jr., Deceased, and Others, Appellants, Impleaded with Thomas S. Irvin and Others, Defendants.

First Department,

December 21, 1906.

Headnote

Practice —when defendant required to serve copy of account.

When the defendant’s answer pleads an account without setting forth the items, the plaintiff is entitled to a copy of the account under section 681 of the Code of Civil Procedure.

When the plaintiff moves to compel the defendant to furnish such account after demand and refusal, the plaintiff is entitled to an account as a matter of right, and in addition the court may in its discretion preclude the defendant giving evidence of the account unless copies are furnished within a specified time.

" Appeal by the defendants, Mary M. Irvin, individually and as surviving executrix, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of September,' 1906, directing said defendants to furnish to the plaintiffs’ attorney copies of.certain accounts set up in their answers.

Francis Woodbridge, of counsel [Lord, Day & Lord and Darius F. Peck, attorneys], for the appellants.

Robert Kelly Prentice, of counsel [A. Coleman Smith, attorney], for the respondents.

The defendants in their separate answers plead certain accounts heretofore made as a defense. We are of the opinion that in pleading said accounts the defendants properly conformed to the provisions contained in the 1st paragraph of section 531 of the Code of Civil Procedure, in which it is set forth that “ It is not necessary for a party to set forth in a pleading the items of an account therein alleged,” but that having pleaded - in accordance ’with said provisions the mere fact of the account, the subsequent provisions of the section which are as follows, “ But in that case he

p. 360

must deliver to the adverse party, within ten days] after a written demand thereof, a copy of the account which, if ¡the pleading is verified, must be verified by his affidavit to the effect ¡that he believes it to be true * *, *. -If he fails so to do he is precluded froni giving evidence of the account,” >apply, . -•

The plaintiffs made a demand for the accounts as; provided for in ■said section, and not having received them within tljie specified time made a/motion before the Special Term for an order precluding the defendants from giving evidence thereof. The learned court did' not grant the motion- as made, but did require the defendants to' furnish copies of the said accounts to the plaintiffs’ ¡attorney within twenty days, and it is from that order' that the defendants appeal.

We think the plaintiffs .were entitled to the accounts, and it not, to the relief demanded. But we think that it is within the discretionary- power of the court in the order precluding the giving of evidence.to provide that said order shall be _ effective unless copies of the accounts are furnished within a specified time. Plaintiffs, are entitled to these accounts as a matter of .right,j under the. first part of said section, and not as a matter of discretion as of a bill of particulars, as' is provided for in the latter, part of the section.

The order appealed from should, therefore, be modified by providing that the defendants be precluded from giving evidence of the accounts or statements referred to in paragraph; 9,. subdivisions 6, 13, 14 and 20 of each of their answers, unless within twenty days after the entry of the order and service of. a copy thereof with notice of entry they furnish-to the plaintiffs’ attorney copies of tlié accounts set up in the said paragraphs of each of their said" answers, and as so modified affirmed, without costs to either party:

Present— Patterson,' P. J., Ingbaham, McLaughlin, .Claeke and Houghton, JJ. ' ~ ^ - j

Order modified as directed in opinion, and as modified affirmed without costs. Settle order on notice.