Hawes v. Foote — 29 N.Y.S. 680

Majority

p. 680

(9 Misc. Rep. 203.)

HAWES v. FOOTE.

(City Court of New York, General Term.

June 20, 1894.)

Headnote

Pleading—Bill or Particulars.

In an action on an alleged contract to pay 10 per cent, of the amount received by defendant on certain life insurance policies, plaintiff will not be required to furnish a bill of particulars, as the facts as to the making of the contract and the collection of the money are within defendant’s knowledge.

Appeal from special term.

Action by Charles H. Hawes against Mary A. O. Foote. From an order requiring a bill of particulars, plaintiff appeals.

Reversed.

Argued before HEWBURGER and COHLAH, JJ.

Alexander Melhado, for appellant.

William Blaikie, for respondent.

This action is brought- to recover under an alleged special agreement, whereby defendant was to pay plaintiff 10 per cent, of the amount of all moneys received by her under certain life insurance policies issued in her favor. Ho answer has, as yet, been interposed. An order was entered herein, requiring plaintiff to furnish the defendant with a bill of particulars of the services rendered by the plaintiff, and from such order this appeal has been taken.

This action is on a contract to recover 10 per cent., and not on a quantum meruit. The defendant ought to know whether she made a contract to pay the plaintiff 10 per cent, on all moneys collected by her on insurance, and how much she .collected on such policies. The facts are peculiarly within the knowledge of the defendant, and plaintiff ought not to be required to furnish a bill of particulars. The order appealed from must be reversed, with costs.