Barreto v. Rothschild — 87 N.Y.S. 553

Majority

p. 553

BARRETO v. ROTHSCHILD.

(Supreme Court, Appellate Division, First Department.

April 8, 1904.)

Headnote

1. Contract—Performance of Condition—Pleading—Bill of Particulars.

In an action on a contract, the defendant, having denied the plaintiff’s allegation of performance, cannot be required to give a bill of particulars of his denial, though he specified in his pleading certain particulars in which the plaintiff had failed to comply with his contract.

Appeal from Special Term, New York County.

Action by John D. Barreto against Victor H. Rothschild. From an order granting a motion for a bill of particulars, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Abraham Benedict, for appellant.

Moses R. Ryttenberg, for respondent.

It was stated by the court below in granting by respondent upon this appeal, that, if the defendant had'contented himself with a denial of the plaintiff’s allegation of performance, he would not have been required to state the particulars of his denial; but it was held that because not content with the denial, he specified certain particulars in which the plaintiff had failed to comply with his contract, he should be required to furnish the particulars of the instances specified. To entitle the plaintiff to recover under the' contract, he must allege and prove that he performed the contract so far as it called upon him to perform it, and the defendant should not be required to specify his evidence by which he expects to disprove the plaintiff’s allegation of performance. For that purpose he will be entitled to use any evidence available, and should not be limited, which would be the effect of requiring him to furnish the particulars asked for.

Reversed, with $io costs and disbursements, and the motion denied, with $io costs. All concur.