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Seed v. Fairchild

82 N.Y.S. 490 Court N.Y. App. Div. Decision date 1903-05-28 English

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p. 490
SEED v. FAIRCHILD.
(Supreme Court, Appellate Division, Second Department.
May 28, 1903.)

Headnote

1. Account—Action—Statement.
Code Civ. Proc. § 531, provides that, in an action on an account, where the items are not set forth in the pleading, plaintiff must deliver a copy of the account, if demanded, and that the court may direct a bill of particulars to be delivered. In an action on an account the complaint alleged moneys loaned in the sum of “$107,000 and upwards,” on which payments had been made, leaving a balance of “$97,000 and upwards”; and an account was served, showing a total on the debit side of $106,598.90, the items on the credit side being $10,214.61, leaving a balance of $96,384.29. Held, that the account was sufficient, and it was proper to overrule a motion for a further account and bill of particulars.
Appeal from Special Term, Kings County.
Action by John H. Seed against Ben L. Fairchild. From an order denying defendant’s motion for a further account and bill of particulars, he appeals.
Affirmed.
Argued before GOODRICH, P. J„ and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
Milton A. Fowler, for appellant.
M’Cready Sykes, for respondent.

This is an action upon an account between the plaintiff and the defendant for moneys loaned to the defendant, at his request, “in the sum of $107,000 and upwards,” as alleged in the complaint, upon which payments have been made, leaving a balance due the plaintiff, according to the complaint, of “$97,000 and upwards.” The defendant demanded an account, under section 531 of the Code of Civil Procedure, and an account was served, showing a

p. 491
total on the debit side of $106,598.90. The item on the credit side was $10,214.61, leaving a balance of $96,384.29, or a little less than the amount mentioned in the complaint. The defendant thereafter moved for a further bill of particulars, and his motion was denied. We think the account served was plainly sufficient, within the meaning of section 531 of the Code, and that the order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements.