Barreto v. Rothschild — 93 A.D. 211

Majority

p. 211

John D. Barreto, Respondent, v. Victor Henry Rothschild, Appellant.

Headnote

Action on contract — bill of particulars of the instances whereinthe defendant claims that the plaintiff did not comply with- the contract.

Where the answer interposed in an action upon a'contract denies, the plaintiff’s allegation of performance, the defendant will not be required to state the particulars of his denial, nor, if he specifies certain instances wherein the plaintiff has failed to comply with the contract, will he be required to furnish the particulars of the instances specified.

Appeal by the defendant, Victor Henry Rothschild, from an order of the Supreme Court, made at the New York Spécial Term and entered in the office of the clerk of the county of Hew York on the 16th day of December, 1903, requiring the defendant to serve a bill of particulars.

Abraham Benedict, for the appellant..

Moses R. Ryttenberg, for the respondent.

.It was stated by the court below in granting this motion, and is conceded by the respondent upon this appeal, that if the defendant

p. 212

had contented himself with a denial of the plaintiff’s allegation of performance, he would not have been required to state the particulars of his denial; but it was held that because, not content with the denial, he specified certain particulars in which the plaintiff had .failed to comply with his contract, he should be required to furnish the particulars of the instances specified. To entitle the plaintiff to recover under the contract, he must allege and prove that he performed the contract so far as it called upon him to perform it, and the defendant should not be required to specify his evidence by which he expects to disprove the plaintiff’s allegation of performance. For that purpose he will be entitled to use any evidence available, and should not be limited, which would be the effect of requiring hint to furnish the particulars asked for.

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

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

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