Wilson & Baillie Manufacturing Co. v. Dumary — 125 N.Y.S. 803

Majority

p. 803

WILSON & BAILLIE MFG. CO. v. DUMARY.

(Supreme Court, Appellate Division, Third Department.

November 16, 1910.)

Headnote

1. Pleading (§ 317^[1] )—Bill of Particulars.

It is improper to compel plaintiff to furnish a bill of particulars of - the persons present at the time when the transactions between the parties relied on were had; it not being the office of a bill of particulars to furnish a list of the witnesses of the party required to furnish a bill of particulars.

[E<3. Note.—For other cases, see Pleading, Cent. Dig. §§ 954-962; Dec. Dig. § 317.*]

2. Pleading (§ 317*)—Bill of Particulars.

Under Code Civ. Proc. § 531, providing that, where the account on which the cause of action rests is not set forth, defendant is entitled to a bill of particulars, plaintiff, who makes the account out of which he claims the indebtedness of defendant accrued a part of the complaint,

p. 804

■ and who sets forth fully therein all the transactions between the parties, should not be required to furnish a bill of particulars.

[Ed. Note.—For other cases, see Pleading, Cent! Dig. §§ 954-962; Dec. Dig. § 317.*]

Appeal from Special Term, Albany County.

Action by the Wilson & Baillie Manufacturing Company against T. Henry Dumary. From an order directing plaintiff to furnish a bill of particulars, he appeals.

Reversed.

Argued before SMITH; P. J., and KELLOGG, COCHRANE, SEWELL, and HOUGHTON, JJ.

George C. Case, for appellant.

Thomas F. Powers, for respondent.

The action is for money loaned to and expended by the plaintiff for the defendant. Annexed to the complaint and made a part of it is a full debit and credit account of the transactions had between the parties upon which the plaintiff bases its cause of action. On motion of the defendant the court required the plaintiff to furnish a bill of particulars of the time when the amount claimed by plaintiff was advanced to the defendant, and the place where, and whether paid in cash or by check, and also who was present when the loan was made, and whether the defendant delivered any collateral security for the same.

It was improper to compel the plaintiff to furnish a bill of particulars of the persons present at the time when the transactions between the parties were had. It is not the office of a bill of particulars to furnish a list of the witnesses of the adverse party. ■ The plaintiff having made the account out of which it claims the indebtedness of the defendant accrued a part of its complaint, and having set forth fully therein all the transactions claimed to have been had between the parties, no further bill of particulars should have been required. Section 531 of the Code of Civil Procedure provides that an account need not be set forth in a pleading, unless the party so chooses, and that, if the account upon which the cause of action rests is not set forth, the opposite party .is .entitled, to a bill of particulars. Where the account is fully set forth, there is no occasion for any further bill of particulars, because the opposite party is furnished with all the items in controversy. Seed v. Fairchild, 83 App. Div. 629 , 82 N. Y. Supp. 490 .

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