Hopkins v. Rathbun — 45 A.D. 123

Majority

p. 123

Frank Hopkins, Respondent, v. Sarah A. Rathbun, Appellant.

Headnote

Bill of particulars — what statement, accompanying a general denial, is not an allegation of nayment of the services sued for.

Where the answer, interposed in an action to recover the reasonable value of legal services rendered to the defendant, is a general denial, and an allegation "that all legal services ever rendered to her, or any services of any kind rendered to her, by the said John R Joslyn, have been fully paid for by this defendant,” the plaintiff is not entitled to a bill of particulars of the payments alleged to have been made, as the allegation as to payment must, in view of the general denial,- necessarily refer to other services than those for which the plaintiff seeks to recover.

Appeal by .the defendant, Sarah A. Rathbun, from an order of the Supreme Court, entered in the office of the clerk of the county

p. 124

of Chemung on the oth day of December, 1898, requiring her to serve a bill of particulars of payments alleged In her answer to have been made by her.

David N. Heller, for the appellant.

Gabriel L. Smith, for the respondent.

The complaint asks to recover the reasonable value óf legal services rendered to the defendant by -the plaintiff’s assignor at her request.'

The answer is a general denial and an allegation that all legal services ever rendered to her, or any services of any kind rendered to. her, by the said John R. Joslyn have been fully paid for by this defendant.” This is not an allegation of payment for the services specified in the complaint, since the answer denies such services, instead of admitting them, and thus necessarily refers to other services for which the plaintiff does not seek to recover. Hence no bill of particulars w.as needful.

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

All. concurred.

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