Marks v. Greenwald — 34 N.Y.S. 20

Majority

p. 20

(12 Misc. Rep. 554.)

MARKS v. GREENWALD et al.

(City Court of New York, General Term.

May 28, 1895.)

Headnote

Bill of Particulars—When Ordered.

In an action for the misappropriation of funds by a person for whom defendant was surety, plaintiff will be required to furnish an itemized statement of his claim in order that defendant may frame' his answer.

p. 21

Appeal from special term.

Action by Elias Marks against Benjamin Greenwald and another. From an order requiring plaintiff to furnish a bill of particulars, plaintiff appeals.

Affirmed.

Argued before FITZSIMONS and CONRAN, JJ.

Hy. Huffman Browne, for plaintiff.

Hahn, Myers & Bronner, for defendant.

This case is one in which a bill of particulars could be ordered by the court upon proper application. The plaintiff sues for the misappropriation of funds by the defendant Weinberg, the defendant Greenwald being his surety. He (Greenwald) asks for an itemized statement of the plaintiff’s claim, certainly a very reasonable request to make, and one which should be granted by the court, unless the defendant Greenwald possessed the sought-for knowledge, which he denies he has, because he swears that it will be impossible for him to answer herein unless the bill of particulars requested is granted him. Therefore, because of such statement, the court had a right, in fact it was its duty, to make the order appealed from, which is affirmed, with costs.