Smith v. Johnston — 22 N.Y. St. Rep. 593

Majority

p. 593

William C. Smith, App’lt, v. Walter S. Johnston, Receiver, etc., Resp’t.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Bill of particulars—Granting or denial of order for, discretionary—Code Civ. Pro., § 531.

The granting or withholding of an order to furnish a hill of particulars rests in the discretion of the court to which application is made.

Appeal by the plaintiff from an order of the special term directing him to furnish a bill of particulars to the defendant.

John Notman, for app’lt; C. E. Tracy, for resp’t.

—The action is to recover compensation due upon an alleged contract for work, labor and services performed by the plaintiff in behalf of the defendant from the month of May, 1884, to the last of December, 1884, in and about the management of the properties and affairs of certain corporations, and of their property in Kansas and. known as The Wyandote Water Company and Armour-dale Water Company, and in and about the sale of bonds, capital stock, etc., of those companies, and in and about acquiring for the defendant certain judgments, and obtaining for the defendant certain coupons, etc. The answer puts in issue all the allegations of the complaint.

The motion to compel the plaintiff to deliver a bill of particulars was not made until June, 1888, but the notice-to him to furnish such bill was served as early as the month of March in that year. The granting of the order caused no delay in the trial of the cause in June, for it appears

p. 594

"that it was not made until after the adjournment of the trial court for that month.

No rights were waived by the defendant by omitting to make the motion for a bill of particulars during that period of time.

The language of the Code (section 531), is of a very comprehensive character. By it the court may in any case direct a bill of particulars. Dwight v. Germania Life Ins. Co., 84 N. Y., 502 .

The granting or withholding the order rested in the sound discretion of the judge and seems to have been prop-erly exercised.

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

Van Brunt, Ch. J., and Brady, J., concur.