Young v. De Mott — 1 Barb. 30

Majority

p. 30

Same Term.

Before the same Justice.

Young vs. De Mott.

Headnote

Where, from the nature of the action, the knowledge of the facts on. which the plaintiff’s claim rests is more with the defendant than with the plaintiff, the latter will not be required to furnish a bill of particulars, until he has obtained, or at least had an opportunity to obtain, a discovery from the defendant.

The declaration in this case was special; alleging that the defendant had been employed by plaintiff to collect or compromise for him a certain claim, which he had settled, and had received in satisfaction sundry demands and assets, which he refused to give any account of, or to pay over. The defendant obtained an order for the plaintiff to furnish a bill of the particulars of the demands and assets which the declaration alleged he had thus received in settlement. The plaintiff moved to set aside the order, on two grounds. 1. Because, from the nature of the action, the knowledge was more with the defendant than with the plaintiff; and 2. Because he could not furnish a bill of particulars until hé had obtained a discovery from the defendant.

This is a case in which an adherence to mere technicality may prejudice the merits. The plaintiff brings his suit against the defendant for certain moneys and securities which the defendant has received for him, but which he refuses to render any account of, or to pay over. And the defendant, by asking for a bill of particulars, seeks to tie the plaintiff down in such a manner that if he makes a mistake, he may be turned out of court. This was manifest to the commissioner; and it was also shown to him that the plaintiff could not give a bill of particulars, with any safety, until the defendant should make a discovery of that which was peculiarly within his knowledge; that is, what moneys and securities of the plaintiff 'he had received. Under such' circumstances, the defendant ought not to have been allowed to ask for particulars until he had made a discov

p. 31

ery. But the plaintiff ought, in the meantime, to have taken steps to obtain a discovery. And he must do so with a|l convenient speed ; otherwise he may keep this suit hanging over the defendant ad libitum.

The order for a bill of particulars must be set aside; without prejudice however to the defendant’s right to apply for a new order for particulars, and proceeding to judgment thereon, unless the plaintiff, within twenty days, shall institute proceedings to obtain a discovery, and prosecute the same to a termination, with all due diligence.