p. 704John F. Withers, App’lt, v. Hector Toulmin, Resp’t.(City Court of New York, General Term,Filed September 15, 1887.)Headnote
Bill of particulars—Verification.In all cases in which a hill of particulars is ordered, if the pleading he verified, the hill of particulars must he verified also.
The court ordered that the plaintiff serve on the defendant within three days a bill of particulars of the services alleged in the amended complaint, and directed that the defendant have two days after the service of said bill in which to serve his answer.. On June 9 a bill of particulars was served, which was on the same day returned because not verified. On June 13 the plaintiff entered judgment as by default, and, upon motion made for the purpose, the court set aside the judgment, holding that the bill of particulars should have been verified; that it was, therefore, properly returned, and the time allowed to the defendant had not, therefore, commenced to run when the judgment was entered.
H. iSecor, for app’lt; E. A. Hutchins, for resp’t.
If the items of an account are delivered under section 531 of the Code, they must be verified if the pleading is verified. That section expressly so provides. It also authorizes the court to direct “a further account” or a “bill of particulars” of the claim of either party tobe delivered to the adverse party, and is silent as to whether such further account or bill of particulars should be verified or not. It is elementary that in construing any part of a law the whole must be considered; the different parts reflect light on each other; and, if possible, such a construction is to be made as will avoid any inconsistency. Effect must be given to every part to make the whole harmonious. It will be implied, therefore, that the legislature intended to make the system uniform, and that when it required an account to be verified, it intended that a further account, if ordered, should be verified also, and intended the same formality in regard to the bill of particulars, for what is fairly implied in an act is as much granted as what is expressed.
According to these just rules of interpretation, which
p. 705give effect to the spirit and intent of the section under consideration, it follows in case wherein an account, further account or bill of particulars is ordered, that if the pleading is verified, the account, further account or bill of particulars (terms sometimes used interchangeably) must be verified also. If this interpretation be correct, the court below disposed of the motion properly, and the order appealed from must be affirmed, with costs.