Lambert v. Perry — 15 N.Y. St. Rep. 964

Majority

p. 964

Conover E. Lambert, App’lt, v. Andrew J. Perry, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

Practice — Bill of particulars — Affivadit — When it cannot be served.

The plaintiff moved for a bill of particulars of certain sums of money alleged in the answer to have been expended by the defendant for the use

p. 965

and at the request of the plaintiff. Thereupon the defendant stipulated in answer to said motion that said allegations in the answer might be stricken out. Held, that the plaintiff, after said stipulation, had no power to inject into this motion by the service of an affidavit one day before the return day of the motion a new ground for relief.

Appeal from order denying plaintiff’s motion for a bill of particulars of certain allegations in the answer.

A. G. Shenstone, for app’lt; A. J. Perry, def’t, in person.

—This action was brought for the purpose Of having a bond and mortgage declared null and void. The defendant in his. answer alleged, amongst other things, that he had laid out and expended for the use and at the request of the plaintiff divers sums of money, etc. The plaintiff thereupon moved for a bill of particulars of these sums of money. Thereupon the defendant stipulated in answer to such motion that said allegations in the answer might be stricken out. The plaintiff then served, without any leave of the court, and without any new notice, another affidavit alleging that he desired a bill of particulars as to another allegation in the complaint which had not' been mentioned in his previous papers.

The court denied the motion, and in this we think the court was entirely correct. The plaintiff had no power to inject into his motion by the service of an affidavit one day before the return day of the motion a new ground for relief.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Bartlett, JJ., concur.