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Lundberg v. De Ronde

123 N.Y.S. 12 Court N.Y. App. Div. Decision date 1910-05-20 English

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p. 12
LUNDBERG et al. v. DE RONDE.
(Supreme Court, Appellate Division, First Department.
May 20, 1910.)

Headnote

Pleading (§ 330[1] )—Bill oe Particulars—Account Containing Items.
Unless the account stated sued on is an account containing items, an order requiring the service of a copy of the account is not justified by Code Civ. Proc. § 531, providing for a copy of the account, where its items are not alleged in the pleading.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 996; Dec. Dig. § 330. *1
Appeal from Special Term, New York County.
Action by Kurt M. Lundberg and another against Philip De Ronde. From an order compelling plaintiffs to furnish a verified bill of particulars, they appeal.
Reversed.
Argued before INGRAHAM, P. J„ and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
Nathan D. Stern, for appellants.
Clarence E. Thornall, for respondent.

There is nothing either in the complaint or in the affidavit upon which this motion was made to show that the account stated is an account containing items, and thus within section 531 of the Code of Procedure. In the absence of such proof, no order requiring a copy of such account to be served was justified.

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