Richards v. Miller — 167 A.D. 443

Majority

p. 443

John Richards, Appellant, v. Asa Miller, Respondent.

Third Department,

May 5, 1915.

Headnote

Pleading — bill of particulars — suit for an accounting — order precluding giving of evidence where particulars not furnished.

In a suit for an accounting with the defendant, with whom the plaintiff was a partner for many years, the defendant should be furnished particulars of the matters alleged to constitute the account.

If, after a plaintiff has furnished a bill of particulars, the defendant is of opinion that he has not exercised good faith, he may then apply to the court for an order excluding evidence as to those parts of the claim of which particulars have not been given. But a provision in the order granting the bill of particulars precluding the plaintiff from giving any evidence on the trial in support of the claims of which he has not given particulars, is unauthorized.

Appeal by the plaintiff, John Richards, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Sullivan on the 30th day of December, 1914, granting defendant’s motion for a bill’ of particulars.

Carpenter & Rosch [Joseph Rosch of counsel], for the appellant.

John R. De Vany, for the respondent.

The order appealed from directs a verified hill of particulars to be served by the plaintiff' as to many matters alleged in the complaint. The granting of this order was within the discretion of the Special Term judge, and we are unable to say that that discretion has been abused. The plaintiff sues for an accounting with defendant, with whom plaintiff was a partner for over twenty years in blacksmithing. It is proper that the defendant should have the particulars of the' matters alleged by the complaint as constituting the account.

The final provision of the order is to the effect that if the plaintiff fails and refuses to comply with the terms of the order he is precluded from giving any evidence on the trial in support of his claims of which he has not given a bill of particulars. This portion of the order was unauthorized. (See Hein v. Honduras Syndicate, 138 App. Div. 788 ; Metropolitan Life Insurance Company v. Heinze, 163 id. 943.) If after the plaintiff has furnished such bill of particulars as he is able to furnish the defendant should be of opinion that he had not exercised good faith in giving the particulars of his claim, the defendant may then apply to the court for an order excluding the evidence as, to those parts of the claim of which particulars have not been given. The court will not ordinarily, however, preclude a party from giving evidence if satisfied that the party has in good faith furnished such particulars as he could furnish in pursuance of the order.

•The order is, therefore, modified by striking therefrom the last provision, and as modified affirmed, without costs.

All concurred.

Order modified as per opinion and as modified affirmed, without.costs.