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Ward v. Littlejohn

6 N.Y.S. 170 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Pratt, J.

Contents

Majority

p. 170
Ward et al. v. Littlejohn et al.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

1. Pleading—Bill of Particulars.
An affidavit on a motion for an additional bill of particulars need not be made by a party to the suit, and it is sufficient if it furnishes the proof necessary to cause the order to be made.
2. Same—Insufficiency.
If the first bill of particulars furnished is insufficient, a new demand need not be made, but it is sufficient to return the first bill, and to demand that the former order be complied with.
3. Same—Additional Bill of Particulars.
The order to furnish a further bill of particulars is in the discretion of the court.
Appeal from circuit court, Kings county.
Suit by Jessie L. Ward and others, legatees under the will of Richard Thompson,'deceased, to open a voluntary settlement of the accounts of D. 0. Littlejohn and H. W. Johnson, executors of such will. A demand for a bill of particulars of money alleged to have been expended and services rendered by defendants was-made and a bill of particulars served. An order on an affidavit of one of plaintiff’s attorneys was made for an additional bill of particulars, and from such order defendant Littlejohn appeals.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Lockwood cB Hill, for appellant. G. G. & F. Reynolds, for respondent.

It was not essential that the affidavit should have been made by a party to the suit. It was only necessary that the affidavit should furnish the requisite proof to require the order to be made, neither was it necessary to make a new and specific demand for further particulars. It was enough to return the bill already furnished if it was defective, and demand that the previous order should be complied with, and a proper bill furnished, or to demand a further bill. The merits of furnishing a bill of particulars had already been passed upon and acquiesced in by the defendants. The order appealed from to furnish a further bill was clearly in the discretion of the judge, and we think the discretion was properly exercised. Dwight v. Insurance Co., 84 N. Y. 493 . According to defendant’s theory it is necessary to try the issue first whether the plaintiffs are entitled to an accounting, and, if so, adjourn the case or send it to a referee. There is no law that requires a case to be tried by piecemeal. It may be very material on the trial to know the amounts-paid and services rendered by defendant and others set up in the counterclaim, and it is important the plaintiff should be informed in respect thereof before going to trial. It is almost a matter of course to require a bill of particulars in cases like this. Liscomb v. Agate, 51 Hun, 291 , 4 N. Y. Supp. 167 ; Robinson v. Comer, 13 Hun, 291 ; Kelsey v. Sargent, 100 N. Y. 602 , 3 N. E. Rep. 795 . This order seems well sustained upon principle and authority, and must be affirmed, with costs and disbursements.

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