Sittig v. Cohen — 130 A.D. 689

Majority

p. 689

Harry Sittig, Appellant, v. Jack Quintus Cohen, Respondent.

First Department,

March 5, 1909.

Headnote

Pleading—bill of particulars — payment to plaintiff’s assignor.

Where in answer to the complaint of the assignee of a national hank seeking to recover on a judgment ten years old, the defendant alleges on information and belief that the defendant paid to the assignor prior to the action, the plaintiff is entitled to a bill of particulars stating the date and place of the alleged payment, the persons or officers who made the payment and the amount thereof.

Appeal by the plaintiff, Harry Sittig, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of August, 1907, denying the plaintiff’s motion for a bill of particulars.

Henry S. Hooker,for the appellant.

William King Hall, for the respondent.

The complaint alleges that on the 5th clay of December, 1898, the Alabama National Bank obtained a judgment in the City Court of Birmingham, Ala., against the defendant for the sum of $685.75 ■in an. action upon a promissory note made by the defendant to said bank; that no part thereof has been paid; and that on or about the 16th day of May,. 1907^ the said bank duly assigned said claim and cause of action to the plaintiff.

The answer denies the allegations of the 6th paragraph of the Complaint which is, “ On information and belief that no part thereof has been paid' to the said bank, although demand has been duly made,” and for a separate and distinct defense defendant alleges, on information and belief, that before the commencement of this action defendant satisfied and discharged the plaintiff’s alleged claim by payment thereof to the Alabama National Bank.

• Plaintiff moved for a bill of particulars which should state the date and place of the alleged payment, the person or persons, officer or officers, to whom made, and the amount or amounts thereof, and the motion having been denied, plaintiff appeals.

Plaintiff’s ■ assignor, being á corporation, must do its business through its officers and employees. It has had- many such during the ten years which have elapsed since the judgment was obtained upon which this suit is brought. The defendant alleges payment upon information and belief. Such an averment - emphasizes the necessity for a bill of particulars Upon the facts, disclosed in these papers. That imder proper circumstances a bill of particulars of alleged payments may be required is established, by authority. (Coolidge v. Stoddard, 120 App. Div. 641 .)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. •

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs< and disbursements, and motion granted, with ten dollars costs.

Cases cited

Coolidge v. Stoddard 120 App. Div. 641 N.Y. App. Div. 1907-06-25 p. 689