p. 798Fred P. Bennett, Appellant, v. G. & W. Manufacturing Company, Respondent.Headnote
Pleading—labor and materials—bill of particulars.A defendant sued for labor performéd and materials furnished, who admits that , some work was done, but alleges that it was so improperly done that he had to do it over again and counterclaims for the expense thereof,' will not be required to furnish a bill of particulars of the work actually done by the ■ plaintiff. "
Appeal by the plaintiff, Fred P. Bennett, from, that part of an order of the Supreme. C.o.u-rt, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 26th day of June, 1909, as resettled, which denies the plaintiff’s motion for a bill of particulars with respect to the allegation in the first paragraph of the answer to the amended complaint to the effect that the Continental Rubber Works performed certain work and rendered certain services.
Maxson & Jones, for the appellant.
George E. Waldo, for the respondent.
This is an appeal from a part of an order as resettled, directing the respondent to serve a bill of particulars. In the amended complaint two causes of action are set up, the claims in which are alleged to have.been assigned to the plaintiff by a foreign corporation known as the Continental Rubber Works. The first cause of action alleges on information and belief that such foreign corporation rendered to the. defendant certain services at a certain time in covering and retiring with rubber certain, wheels and in testing certain wheels, which services are itemized in a statement annexed to the complaint. The second cause of action is for money paid out for freight and materials. In the amended answer the defendant, among other things, denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the complaint, except that during the time stated the Continental Rub-
p. 799her Works performed certain work and rendered certain services on defendant’s behalf, in covering and retiring the Xvheels and furnishing materials, etc. On a motion for a bill of particulars, the defendant was required to furnish the bill asked for except “ what 'of the work performed and services rendered and material furnished, as set forth in said complaint, is admitted, with the times of performance and the value thereof, describing the same so that it may ■ easily be identified.” I do not think the Code of Civil Procedure requires that á defendant who cannot swear point blank that no work was done for him, but who does admit in his answer, as in this case, that some work was done, and who adds in his answer, as this. defendant does, that it was so improperly done that he had to dodt over again, counterclaiming for the expenses, is obliged to tell the plain tiff what work thé latter actually did. In effect, the attempt xvould seem to be to throw the burden of proving a part of the plaintiff’s case upon the defendant.,
The order in so far as appealed from should be affirmed.
Woodward, Jenks, Thomas and Miller, JJ., concurred.
•—•Order in so far as appealed from affirmed, with ten dollars costs and disbursements.