Majority
p. 444O’LOUGHLIN v. AYRAULT. (Supreme Court, Appellate Term. January 10, 1912.) Argued January term, 1912, before SFABURY, GERARD, and HOTCHKISS, JJ.
Headnote
1. Pleading (§ 317[1] )—Bill of Particulabs.Where the account annexed to the complaint in an action for money due did not state the items comprising an item, “Bill rendered, $390,’’ defendant is entitled to a bill of particulars showing such items.
[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. §§ 954-962; Dec. Dig. § 317.*]
2. Account Stated (§ 18*)—Cause of Action.
Where the complaint does not aver an account stated, plaintiff may only recover money claimed to be due by proving the original indebtedness.
[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 85-90; Dec. Dig. § 18.*]
Appeal from City Court of New York, Special Term.
Action by Mary M. O’Loughlin against Ernest F. Ayrault. From an order denying a motion for a further account, defendant appeals.
Reversed, and motion granted.
Blackwell Bros., for appellant.
Richard B. Tillinghast, for respondent.
[1,2] The action is to recover a sum of money which is alleged to be due to the plaintiff from the defendant. An account is annexed to the complaint, giving some of the items for which the money is alleged to be due. The first item on this account is, “Bill rendered, $390.97.” The complaint does not set forth an account stated, and therefore the plaintiff can only recover by proving the original indebtedness. The account which is annexed to the complaint fails to give the particulars as to the largest item in the account.
p. 445
The defendant is entitled to a bill of. particulars setting forth the items which the plaintiff claims comprise the sum of $390.97.
Order reversed, with $10 costs and disbursements, and motion granted as to the item of $390.97. All concur.