Lynch v. Dorsey — 98 A.D. 163

Majority

p. 163

Mart R. Lynch, as Executrix, etc., of J. Thomas Lynch, Deceased, Respondent, v. Stephen W. Dorsey, Appellant.

Headnote

Bill of particulars, as to when and to whom, money was paid on a judgment, sued upon and alleged in the answer to have been paid.

In an action brought by an executrix upon a judgment recovered by her testator against the defendant in 1889, the defendant interposed the defense of payment. The plaintiff moved for a bill of particulars, stating in her affidavit that she had no knowledge of the judgment or any part thereof having been paid and that it was necessary, in order to enable her to prepare for trial, that she should be informed of the time and place of the alleged payment and the name of the person to whom the payment was made. In answer to the motion an affidavit of the defendant’s attorney was presented, who stated that in March, 1901, the plaintiff’s testator instituted supplementary proceedings upon the judgment; that on the examination before .the referee appointed in the proceedings it appeared that certain amounts had been paid to the plaintiff’s attorney; that the referee reported that the judgment had been paid and that the defendant was entitled to have the same canceled; that the court refused to confirm the report of the referee and ordered that money paid (but not stat- • ing the amount) should be credited on the judgment. There was also presented an affidavit of the referee setting forth that he found that some payments had been made upon the judgment.

Held, that the application for the bill of particulars should be granted.

That the plaintiff was entitled to know, particularly, when and to whom the money was paid, so that she could be prepared at the trial to contest either the fact of payment or the authority of the person to whom the alleged payment was made to receive the money.

p. 164

Appeal by the defendant, Stephen W. Dorsey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1902, requiring the defendant to serve a bill of particulars.

CIcvrenee F. Birdseye, for the appellant.

L. E. Warren, for the respondent.

The plaintiff, as executrix of the will of Thomas Lynch, deceased, sues upon a judgment recovered in the City Court in 1889. The substantial defense is payment. The plaintiff moved for a bill of particulars, stating in her affidavit that she has no knowledge of the judgment or any part thereof having been paid, and that it is necessary in order to prepare for trial that she should be informed of the time and place of the alleged payment and the name of the person to whom such payment was made. In answer to the application there was presented an affidavit of the attorney for the defendant, who says that in March, 1901, eleven years after the rendition of the original judgment, Lynch brought proceedings supplementary to execution; that a referee was appointed and that in the examination before the referee it appeared that certain amounts had been paid to the attorney of Lynch. The referee reported that the judgment had been paid and that the defendant was entitled to have the same canceled. The court refused to confirm the report of the referee and ordered that moneys paid (but not stating the amount) should be credited on the judgment. The defendant now insists that all the information sought can be had from the attorney of Lynch and from the papers on file in the supplementary proceedings. There is also in this record an affidavit of the referee setting forth that he found that some payments had been made.

The court below granted the motion, and properly so. This plaintiff being in entire ignorance of the facts constituting the alleged defense of payment and being under the obligation to enforce this clahn for the benefit of the estate, if it is a just one, is entitled to know particularly when and to whom the money was paid so that she can be prepared at the trial to contest either the fact of payment or

p. 165

the authority of the person to whom the alleged payment was made to receive the money.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, R. J., O’Brien, McLaughlin and Laughlin, JJ. concurred.

Order affirmed, with ten dollars costs and disbursements.