Hunter v. Stender — 31 N.Y. St. Rep. 318

Majority

p. 318

Margaret J. Hunter, Resp’t, v. Emma L. Stender, Ex’rx of Smith Quackenbush, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

Bill or particulars.

A complaint alleged the rendition of services and advances of money to a certain amount; an adjustment of accounts and an agreement hy decedent that the balance should be payable at his death, and that he would make provision therefor in his will; that he did so, but by a subsequent will revoked it. Held, that as the complaint, as framed, in its first aspect, sufficiently states an action on an account, a bill of particulars of its items should be furnished.

p. 319

Appeal from an order of the Albany special term, denying defendant’s motion for a bill of particulars.

Be Witt & Spoor, for app'lt; A. G. Moak, for resp’t.

The complaint alleges that the plaintiff from September 1, 1879, to July 6, 1881, rendered the testator services and advanced him money in all of the value of $2,000; that on that day she and the testator adjusted the accounts between them at $2,000, and agreed that the same should be payable at his death, and that he would make provision to that effect in his will; that the testator did make provision to that effect in his will, but by a subsequent will revoked it, and died in 1887 without having paid, or having made provision for the payment of the said sum.

The answer puts in issue the rendition of services, the loan of money, the accounting and promise, and the making of any will making provision for plaintiff, pleads payment and the statute of limitations.

The complaint is framed in a double aspect; to recover either upon the account, or upon the account stated, and the promise to provide for payment of the amount by will.

Under the first aspect of the complaint, we think it reasonable "that the plaintiff should furnish the items of her account. The plaintiff’s contention that the action is not upon the account, but upon the account stated and promise of testamentary provision for its payment, may prove to be true upon the trial, but as the complaint is framed, the action upon the account seems to be sufficiently stated.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Learned, P. J., and Mayham, J., concur.