Stanley v. Millard — 4 Hill & Den. 50

Majority

p. 50

Stanley and others vs. Millard.

Headnote

A bill of particulars furnished pursuant to a judge’s order, containing several charges for cash, without stating whether the money was lent to, paid out for, or received by the defendant, is insufficient.

go of a bill containing charges for notes, giving the amount of each, without any other description.

So of a bill containing items for goods sold &o., giving dates and sums with particularity, and then adding: “ The same items as gbove in every respect in each year, and on every day of the same, (Sundays and fourth. o£ July excepted,) from Sept. 1st, 1838, to Jan’y 1st, 1840.”

In-general, where a bill of particulars furnished under an order is insufficient, the party should apply to a judge at chambers for a farther order; and if a second insufficient bill be delivered, the party may then apply to the court.

But if the first bill be so clearly evasive and unsatisfactory as to show that the party delivering it did not intend to comply with the judge’s order, the opposite party may then move the court at once, without obtaining a second order at chambers.

Bill of particulars. The declaration contained the common counts in assumpsit. The defendant obtained and served a judge’s order that the plaintiffs deliver a bill of the particulars of their demand on or before the 7th day of October, or that they show cause See. ISfo. cause being shown, the order was jnade absolute that the plaintiffs deliver a bill by the 12th of October. On the 11th of October the plaintiffs delivered a bill in which the defendant was charged, (giving dates and sums with particularity,) with goods sold, money, notes, and various other items, amounting to several thousand dollars. Then followed these words—£< The same items as above in every respect in each year, and on every day of the same, (Sundays and fourth of July excepted,) from September 1st, 1838, to January 1st, 1840.” After this followed other items, with dates, to the amount of several thousand dollars; and the whole was concluded with these words—££ The same items in every respect, as above in each year and every day of the year, (Sundays excepted,) from January 1st, 1840, to October 1st, 1842.” On an affidavit that the bill was false and evasive—»

p. 51

J. A. Millard, in pro. per.,

now moved for judgment of non pros. He cited Purdy v. Warden, ( 18 Wend. 671 j) Barnes v. Henshaw, (21 id. 426.)

J. D. Willard, for the plaintiffs,

read an affidavit that the bill was delivered in good faith. He cited Humphrey v. Cot tleyou, (4 Cowen, 54 ;) Goodrich v. James, ( 1 Wend. 289 ;) Grah. Prc. 518.

By i/ze Court,

This is not a sufficient bill of particulars. It contains several charges for “ cash” in different sums, from two dollars up to more than two thousand. But whether it was money lent to, or paid out for the defendant, or whether it was money received by him to the use of the plaintiffs does not appear. The defendant is also charged with “ one note $1000,” another note of the same amount, and “ one note $500.” Whether these notes were made by the defendant or by some one else, or whether they were sold to the defendant, or delivered to him for collection, is not stated. This is not the proper way to prepare a bill of particulars. It does not give the party the information which he has'a right to demand.

But the worst features in the bill are the 'general clauses in which the plaintiffs, who are merchants or manufacturers and keep books of account, claim each and all of the items in the bill on every day, except Sundays and the fourth of July, in a period of more than four years. They claim several millions of dollars in a case where the true amount probably does not exceed a few hundreds, and where the defendant insists that a belance is due to him. This is not a fair compliance with the judge’s order.

As a general rule, when the bill is not sufficient, the party should apply to a judge at chambers, who will make an 'order for further or better particulars ; and if a second insufficient bill is delivered, the party demanding it may then apply to the court. But where the first bill is so clearly evasive and

p. 52

unsatisfactory as to show that the party delivering it did not intend to comply with the judge’s order, the other party may move the court at once, without obtaining a second order at chambers. (Purdy v. Warden, 18 Wend. 671 .) Although

this bill is clearly insufficient, I am satisfied from the affidavits that no wrong was actually intended. The plaintiffs should therefore be allowed .to deliver further and better particulars of their demand on payment of the costs of this motion.

Ordered accordingly.

Cases cited

Goodrich v. James 1 Wend. 289 N.Y. Sup. Ct. p. 51