Kellogg v. Griffiths — 124 A.D. 513

Majority

p. 513

Frederick H. Kellogg, Appellant, v. H. Willard Griffiths, Respondent.

Second Department,

February 28, 1908.

Headnote

Bill of particulars — partnership accounting — misappropriation of firm moneys.

A plaintiff suing for the dissolution of a partnership and an accounting who alleges that the defendant misappropriated firm moneys to his own use iu excess of his- due share, and to conceal the fact has not balanced the books, should not he required to .give a bill of particulars of said allegations, for it is not the office of a bill of particulars to make the complaint more definite and certain or to compel a disclosure of evidence. .

Appeal by the plaintiff, Frederick H. Kellogg, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 13th day ■ of December, 1907, directing the plaintiff to furnish a bill of particulars.

Frederick H. Kellogg, appellant, in person.

Lincoln L Kashin, for the respondent.

This is an appeal from an order of the Special Term for a bill of particulars. The action is brought to dissolve a partnership :of no definite term. The plaintiff complains that he and the.defendant were to share alike the receipts and the profits; that since the coinfncncement of the partnership the defendant has from time to time applied to his own use from the receipts and profits of the business large sums of money in excess of his proper share, and “in order to conceal the same said defendant, who has always had the management of the copartnership books, has never balanced said books; ” that defendant has received the sum of $1,000 over, and above

p. 514

his due’ proportion of the juofits, and that he continues to collect the .debts and to appropriate them. The prayer is for dissolution ■ and an accounting; a sale of the effects, a discharge of the liabilities,, a division of the surplus, an injunction on the defendant and the appointment of a receiver. The defendant admits the copartnership, denies the other allegations and alleges that the plaintiff has on his part collected and applied to his own use sums, due the firm ■ in excess of his share, amounting to more than $1,000. lie asks ftir dissolution, an account and a receiver. Issue was joined by the service of a reply of denials on October 10, 1907. It appears that the defendant was appointed receiver on' September 30, 1907. The order' appealed from required the plaintiff to furnish a bill of particulars of the claims and allegations contained in paragraphs 4 and 5 of the complaint. There is no paragraph 5 in the complaint printed in the record, but I take- it that the bill covers the allegations .of the receipt of moneys by the defendant in excess of his due share. It will be. seen that the allegation is that the defendant has misapplied to his own use moneys beyond his due share and that to conceal the fact he has not balanced the books, i. e., that the books will show these facts if balanced. It is not the office of a bill of particulars to have a complaint made more definite and certain 'or to compel the disclosure of a party’s evidence. (Ingraham, v. International Salt Co., 114 App. Div. 791 ; Van Olinda v. Hall, 82 Hun, 357 .) I think that this case is within the principle of Depew v. Leal ( 5 Duer, 664 , approved in Blackie v. Neilson, 6 Bosw. 683 ), unless the partner makes claim for moneys “ not evidenced by, or intelligible from the entries upon the books,” one partner “ has presumptively as much knowledge of details as the other. \ To furnish a bill of particulars, is to furnish a copy of the books.”' (See, too, American Transfer Co. v. Borgfeldt & Co., 99 App. Div. 470 ; Fink v. Jetter, 38 Hun, 163 .)

The order should be reversed, with costs, and the motion denied,, with ten dollars costs.

Hooker, Gayetor, Rich and Miller, JJ., concurred.- .

Order reversed, with ten dollars costs arid disbursements, and motion denied, with ten dollars costs. •

Cases cited

Ingraham v. International Salt Co. 114 App. Div. 791 N.Y. App. Div. 1906-07-24 p. 514
American Transfer Co. v. George Borgfeldt & Co. 99 App. Div. 470 N.Y. App. Div. 1904-12-23 p. 514