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Dempsey v. Gazzam

79 N.Y.S. 330 Court N.Y. App. Div. Decision date 1902-12-19 English

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p. 330
DEMPSEY v. GAZZAM et al.
(Supreme Court, Appellate Division, First Department.
December 19, 1902.)

Headnote

1. .Pleadin.g—Bill op Particulars.
Where au attorney sued several defendants for .services, and bis complaint merely .alleged -that all the defendants were indebted -to him in a certain sum tor services rendered, one defendant, appearing separately and denying .the employment and rendition pf the services, -is .entitled to a bill .of .particulars thereof.
3, Same—Depositions—Commission—Return.
The right of a defendant, appearing separately In an action by an attorney for services, to a ‘bill of particulars, is not -affected by the fact that plaintiff ihas .applied for ,a commission to take testimony, and that part of the information.sought .by .the .bill may .be elicited by the -depositian.
Appeal from special term, New York county.
Action by John Aird Dempsey against the Bergen County Traction -Company, Joseph M. -Gazzam, and others, to recover -attorney’s fees -for services rendered in the organization and -promotion of the -corporation defendants, and to recover on a contract of employment by the individual -defendants. The complaint alleged -generally plaintiff's .employment -and the .amount -due. Defendant Joseph M. Gazzam appeared separately, -and denied the employment -and rendition ¡of services, and moved for a bill of particulars of plaintiff’s -claim. From an lOi-der denying -the -motion, defendant Gazzam appeals Reversed
Argued before" VAN BRUNT, P. J.„ and Mc-FAU-GHLrN, PATTERSON, O’BRIEN, and EAU.GHLIN", JJ.
Joseph M. Gazzam, Jr., for appellant.

The motion of the defendant Gazza-m "for a bill of -particulars of the plaintiff’s claim should have been granted, and the order denying that motion must be reversed. In this .same action (Dempsey v. Traction Co., 74 App. Div. 474 , 77 N. Y. Supp. 456 ) we held that the defendant corporations were entitled to a bill of particulars, and reversed an order denying the motion made by them for such a ‘hill. The defendant Gazzam is entitled t.o the information he demanded in his notice of motion. In denying" that motion, the court below suggested that it .could'be .passed upon bet

p. 331
ter after the return of a commission which the plaintiff had moved for, and that possibly some of the evidence to be elicited would render it unnecessary to state some part of the particulars demanded. The right of the defendant to a bill of particulars is not affected by the return of a commission, as was held in Dempsey v. Traction Co., supra.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion for a bill of particulars granted, as demanded by the moving party, with $10 costs.

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