Talman v. Dorthy — 22 N.Y.S. 888

Majority

p. 888

TALMAN v. DORTHY et al.

(Supreme Court, General Term, Fifth. Department.

April 13, 1893.)

Headnote

Bill or Particulars—When Ordered—General Denial.

In an action for money had and received, where defendant admits receiving the money, but alleges he had paid it out for plaintiff’s benefit, his answer is not in effect a general denial, and plaintiff is entitled to a bill of particulars.

Appeal from Monroe county court.

Action by Harriet M: Taiman against John F. Dorthy and another for money had and received. From- an order directing him to furnish plaintiff with a bill of particulars, defendant Dorthy appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.

John F. Dorthy, in pro. per.

Turk & Barnum, for respondent.

The complaint alleged that the defendant Dorthy, as the agent of the plaintiff, received of the defendant Nevin $2,000,

p. 889

for the purpose of paying the same over to the plaintiff; that he neglected and refused to pay the same or any part thereof to her, except the sum of $1,200; and that the balance of said money, viz. $800, the defendant Dorthy refused, and still refuses, to pay over, and has converted the same to his own use. The defendant, by his answer, admitted receiving the money, but alleged that, before the -commencement of the action, he disposed of and paid to and for the benefit of the plaintiff the $2,000, pursuant to her request. The plaintiff, upon her affidavit, which stated that she did not know in what way the defendant disposed of and paid for her benefit the §2,000, moved the court for a bill of particulars, and the order appealed from was made, directing the defendant to deliver to the plaintiff a bill of particulars of the names of the parties to whom the money was paid, and the amount and date of each payment. The defendant contends that his answer is, in effect, a general denial simply, and refers to authorities holding that, when such an answer is interposed, a bill of particulars will not be ordered. The difficulty with the appellant’s contention is that he mistakes the character of his answer. His answer admits the receipt of the money under the circumstances as stated in the complaint, and it then alleges payment thereof as heretofore stated. It is proper that the plaintiff should be advised of the particulars of the alleged payments. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.