Main v. Pender — 85 N.Y.S. 428

Majority

p. 428

(88 App. Div. 237.)

MAIN et al. v. PENDER.

(Supreme Court, Appellate Division, Third Department.

November 11, 1903.)

Headnote

1. Bill op Particulars — Statement op Account — Demand — Motion to Strike—Time op Hearing.

Code Civ. Proc. § 531, provides that, where a party does not set out the items oí an account, the opposing party may demand a statement oí the items within 10 days, and on failure to give the same the party alleging the account shall be denied the privilege oí offering evidence. In an action for damages for an unauthorized signing by defendant of her husband’s name to an order for a quantity of jewelry, the action sounding in tort, but being pn a contract alleging an account, defendant demanded a bill of particulars. -Held that, as there might be some question of the propriety of the demand, a motion by plaintiff to strike the demand was properly heard and decided within the 10 days.

Appeal from Special Term, Washington County.

Action by Willard F. Main and others against Mary Pender. From an order striking out defendant’s demand for bill of particulars of' items of the complaint, she appeals.

Affirmed.

Argued before PARKER, P. J., and SMITH, CHASE, and CHESTER, JJ.

A. D. Arnold, for appellant.

Erskine C. Rogers, for respondents.

The order appealed from is one striking out defendant’s demand for a bill of particulars of various items of damages alleged in the complaint, with costs. The complaint alleges a cause of action for damages for an unauthorized signing by the defendant of her husband’s name to an order for a quantity of jewelry. The action sounds in tort, and is on a contract alleging an account. The case is not one where the defendant had a right, under section 531 of the Code of Civil Procedure, to demand from the plaintiffs a copy of the items of the account alleged in the complaint, for there was no such account alleged, but it was a case where the defendant might properly have applied to the court under that section for an order directing the plaintiffs to deliver a bill of the particulars of the plaintiffs’ claim to the defendant. Instead of so applying, the defendant’s attorney served upon the plaintiffs’ attorney a written demand for a bill of particulars. Plaintiffs’ attorney immediately thereafter made a motion to strike such demand from the case on the ground that it was improper. The motion was heard and decided within 10 days after service of the demand. From an order granting the motion this appeal is taken.

If such demand had been a proper one, failure to comply therewith within 10 days might have subjected the plaintiffs to an order precluding them from giving evidence on the trial of the matters demanded. If the motion had not been made and, decided within 10 days, plaintiffs’ attorney would have been at the hazard of determining for his clients whether it was a proper one which should be complied with, or whether it was'improper, and one which could safely be disregarded. In this case there would not seem- to be much, if any, doubt that under this complaint a demand was not proper; yet lawyers,

p. 429

and possibly courts, might differ upon that question. That being so, it seems to me that the plaintiffs’ attorney was correct in his practice in making the motion to strike out or to nullify the demand so as to have the question as to its propriety determined by the court before his io days for complying, if it should be held to be a proper one, expired. It is no more reasonable to require him to determine the question as to the propriety of the demand than to subject the attorney who makes an improper demand to the hazard of havipg such demand stricken out or nullified, with costs. The order appealed from was therefore right, and was the practice sanctioned in the somewhat similar case of Dowdney v. Volkening, 37 N. Y. Super. Ct. 313 , where an order denying a motion to strike out a demand for a bill of particulars was reversed.

The case of Barkley v. Rensselaer & Saratoga Railroad Co., 27 Hun, 515 , is hot an authority against the conclusion here reached. There a demand had been made for the items of an account where an account had been alleged in the complaint, and the court reversed an order setting aside such demand, which is quite a different case from that presented here.

The order should be affirmed, with $10 costs and disbursements. All concur.

Cases cited

Dowdney v. Volkening 37 N. Y. Super. Ct. 313 N.Y. Super. Ct. 1874-05-02 p. 429