Knickerbocker Trust Co. v. O'Rourke Engineering Const. Co.

Majority

p. 116

KNICKERBOCKER TRUST CO. v. O’ROURKE ENGINEERING CONST. CO.

(Supreme Court, Appellate Division, First Department.

December 30, 1905.)

Headnote

Pleading—Bill of Particulars.

Where an agreement is alleged in defense, plaintiff is entitled to a bill of particulars as to whether the agreement referred to is in writing, and, if not in writing, then a statement to that effect.

Appeal from Special Term, New York County.

Action by the Knickerbocker Trust Company, as trustee, against the O’Rourke Engineering Construction Company. From an order granting a motion for a bill of particulars, defendant appeals.

Modified.:

p. 117

Argued before INGRAHAM, McRAUGHUN, CLARICE, and HOUGHTON, JJ.

Abram J: Rose, for appellant.

Herbert Barry, for respondent.

The defendant appeals from an order granting plaintiff’s motion for a bill of particulars of certain matters alleged as a defense to the cause of action.

We are of the opinion that a bill of particulars was properly ordered as to certain facts alleged, and which are designated in the order “1” and “4.” Plaintiff was not entitled to a bill of particulars as to the items designated “2” and “3,” nor was it entitled to all of that designated “6.” As to “6,” plaintiff is entitled to a bill of particulars as to whether the agreement referred to in that item is in writing, and, if not in writing, then a statement to that effect, and this is all it is entitled to under that item.

The order appealed from/ therefore, should be modified as here-indicated, and, as thus modified, affirmed, without costs to either party.