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Mercer v. Sayre

3 Johns. 248 Court N.Y. Sup. Ct. English

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p. 248
Mercer against Sayre, impleaded with Toler.
NEW-YORK,
May, 1808.

Headnote

When the defendant pleads payment, and gives notice of a set-off in general terms for goods sold and delivered, money paid, &c. the plaintiff may require him to specify and deliver the particulars of the set-off; and where the particulars of the plaintiff's demand are not set forth in his declaration,the defendant may require him to state the ptirtiCtdars.
D. B. OGDEN, in behalf of the plaintiff,
moved that the defendant deliver to the plaintiff’s attorney, the particulars in writing of the matters mentioned in the notice of set-off accompanying his plea.
This was an action of assumpsit, to which the defendant pleaded non assumpsit and payment, and gave notice that he intended to set off, at the trial, several large sums of money due to him for goods sold and delivered, work and labour, money had and received, paid, laid out, Skc. in general terms.
To show the English practice on this subject, he cited Tidd, (2d Ed.) 508—511.
Baldwin, contra,
objected, that this was an attempt to introduce a new point of practice, which would prove extremely inconvenient, as the party would be bound by the precise particulars delivered, and any variation would expose the plaintiff on the one hand to he nonsuited, and the defendant on the other, in case of a set-off, to be defeated. (3 Burrow, 1390.) It might also be abused for the mere, purpose of delay.

We have formerly decided, that the defendant had a right to call on the plaintiff for the particulars of his demand, where they are not disclosed in his declaration. Equal justice seems to require that the plaintiff also, should be allowed to demand of the defendant, the particulars of his set-off when they are not specified in the notice. The plaintiff may take his rule, that the defendant deliver to the plaintiff’s attorney, an account in writing of the particulars of his set-off* within twenty days, or that in default thereof, he be precluded from giving evidence at the trial in support of the same.

Rule granted.