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Ebling Brewing Co. v. Lipkowitz

121 N.Y.S. 424 Court N.Y. App. Term Decision date 1910-02-24 English

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p. 424
EBLING BREWING CO. v. LIPKOWITZ.
(Supreme Court, Appellate Term.
February 24, 1910.)

Headnote

Pleading (§ 385[1] )—Bill of Particulars—Effect of Failure to File.
Under Code Civ. Proc. § 531, a defendant, failing to file a bill of particulars as to certain matters when ordered, may not introduce any evidence as to those matters.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1299; Dec. Dig. ■§ 385.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by the Ebling Brewing Company against Charles Lipkowitz. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SFABURY, GUY, and WHITNEY, JJ.
Norbert Blank, for appellant.
Morris Cukor, for respondent.

Defendant conceded the correctness of the items on plaintiff’s bill of particulars. This cast upon him the burden of showing other items of credit, which would offset them. This he did only to the extent of $93. That left the principal debtor still owing $188.25, far more than the amount for which defendant remained responsible.

The principal debtor’s unparticularized statements, contradicting his admissions in open court, should not have been made the basis of decision, even though not objected to. Furthermore, defendant had been ordered to give a bill of particulars as to certain matters, and had failed to do so. The objection to his testimony as to those matters should have been sustained. Code Civ. Proc. § 531.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.