Matthews v. Hubbard — 47 N.Y. 428

Majority

p. 428

Edward Matthews, Appellant, v. Charles B. Hubbard et al., Respondents.

Headnote

The office of a bill of particulars is to apprise defendants of the items which plaintiff expects to prove, and to restrict the proofs to the matters specified.

The merits of the case cannot be inquired into upon motion for a bill, nor can the sufficiency of the bill be determined by the allegations of the answer.

The bill of particulars need not state more than plaintiff is bound to prove. If the specifications do not accord with the facts, or if they omit matters essential to the plaintiff’s case, the defendant can take advantage of it upon the trial, not upon motion, to strike out the items objected to.

(Argued January 23, 1872;

decided February 6, 1872.)

Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming order of Special Term striking out certain items of plaintiff’s bill of particulars. The points presented are stated in the opinion.

J. Sherwood for appellant.

Marsh & Wallis for respondents.

The bill was defective. (Moran v. Morissey, 18 How., 131 .) The allowing another to be served is a matter of favor. (Pimby v. Warden, 18 Wend., 471 ; Stanley v. Millard, 4 Hill, 51 .)

The office of a bill of particulars is to apprise the defendant of the items which the plaintiff intends to

p. 429

prove upon the trial, and to restrict his proofs to the matters specified. The merits of the case cannot be inquired into upon a motion for such a bill, nor can the sufficiency of the bill be determined by the allegations of the answer. The bill is but an amplification of the complaint, and the plaintiff has the right to present his case according to his own view of the facts. The responsibility of proving the items as described rests with him, and he is entitled to the opportunity of so doing.

The only question on this appeal is whether the items stricken out were sufficiently specific and definite to give notice to the defendants of the claims intended to be made upon the trial, and to enable them to confine the plaintiff’s proofs to the matters specified. We think they fully answered these requirements. They set forth various sums stated to have been remitted by the plaintiff, at the request of the defendants, and for their account to a firm in Hew Orleans, which was named. The date and amount of each remittance was given, with a description of the checks, etc., remitted. Proof upon the trial that these remittances were made at the request of the defendants would sustain the allegation of the complaint, that the plaintiff, at the request of the defendants, paid out money for their use, and would maintain the action, and the residue of the allegations could be treated as surplus-age. Upon that state of facts it would not be necessary to show what disposition the Hew Orleans firm made of the money. The bill of particulars certainly need not state more than the plaintiff is bound to prove. It restricts the plaintiff to proof of remittances made at the defendants’ request. If the plaintiff should seek to prove a liability for the items in question, resulting from the application of the money by the Hew Orleans firm, and not from the defendants’ request to remit to that firm, the proof would not be within the specifications, and would, therefore, be inadmissible under them.

If the specifications do not accord with the facts, or if they omit matters essential to the plaintiff’s case, the defendants can take advantage of that upon the trial. All that they can

p. 430

require now is that the hill be as definite and certain as the case will admit.

The order appealed from should be reversed, and the motion to strike out denied with costs.

All concur.

Ordered accordingly.