Kellogg v. Griffiths

This is an appeal from an order "of the Special Term for a bill of párticulars. The action is brought to dissolve a partnership of no definite term. The plaintiff complains that he and the defendant were to share alike the receipts and the profits; that since the commencement of the partnership the defendant has from time to time applied to his own use from the receipts and profits of the business large sums of money in excess of his proper share, and “in order to conceal the same said defendant, who has always had the management of the copartnership books, has never balanced said books”.; that defendant ha's received the sum of $1,000 over and above his due proportion of the profits; and that he continues to collect the debts and to appropriate, them. The prayer is for dissolution and an accounting, a sale of the effects, a discharge of the liabilities,. a .division of the surplus, an injunction on the defendant, and the appointment of a receiver. The defendant admits the copartnership, denies the other allegations, and alleges that the plain

The order appealed from required the plaintiff to furnish a bill of particulars of the claims and allegations contained in paragraphs 4 and 5 of the complaint. There is no paragraph 5 in the complaint printed in the record; but I take it that the bill covers the allegations of the receipt of moneys by the defendant in excess of his due share. It will be seen that the allegation is that the defendant has misapplied to his own use moneys beyond his due share, "and that to conceal the fact he has not balanced the books; i. e., that the books will show these facts, if balanced. It is not the office of a bill of particulars to have a complaint made more definite and certain, or to compel the disclosure of a party’s evidence. Ingraham v. International Salt Co., 114 App. Div. 791 , 100 N. Y. Supp. 192 ; Van Olinda v. Hall, 82 Hun, 357 , 31 N. Y. Supp. 495 . I think that this case is within the principle of Depew v. Leal, 12 Duer. 664 , approved in Blackie v. Neilson, 6 Bosw., at page 683, unless the partnér makes claim for moneys “not evidenced by or intelligible from the entries upon the books,” one partner “has presumptively as much knowledge of details as the other. To furnish-a bill of particulars is to furnish a copy of the books.” See, too, American Transfer Co. v. Borgfeldt, 99 App. Div. 470 , 91 N. Y. Supp. 209 ; Fink v. Jetter, 38 Hun, 163 .

The order should t be reversed, with costs, and the motion denied, with $10 costs.

Order reversed, with $10 costs and disbursements, and motion denied, witln $10 costs. All concur.