Ross v. Willett — 34 N.Y. St. Rep. 121

Majority

p. 121

Frank Ross, as Ancillary Administrator, Resp’t, v. Wallace P. Willett, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Bill of Particulars—Joist ad vesture.

In an action for an accounting under a joint adventure in the purchase and sale of cargoes of merchanise where the complaint alleges that sales were made on certain dates, and defendant affirms that he is without information in regard thereto, a bill of particulars as to the persons and prices to whom and for which the sales were made should be ordered to enable the defendant to prepare his answer.

Appeal from order denying motion for a bill of particulars.

The action was brought for an accounting under a joint adventure in the purchase and sale of merchandise entered into by plaintiff’s testator and defendant. The complaint alleged the purchase of two cargoes, and_ that they were sold on the 17th and 23d of July, 1889.

On the denial of the motion, the following opinion was filed :

Beach, J.—I do not think the defendants are entitled to a bill of particulars; no answer has yet been served. JFhe suit is 'in equity, the complaint alleging an agreement between plaintiff’s intestate and defendants for the joint purchase and sale of specified merchandise, the interest of intestate to be three-fourths and of

p. 122

defendants one-fourth in the result of profit and loss; a loss is averred; an accounting prayed for, and payment by defendants of any sum found due the plaintiff. The case of Miller v. Kent, 60 How. Pr., 388 , was one between admitted principal and agent, and an account was ordered from the agent. This case is different, it not yet being revealed by an answer whether or not the defendants admit or deny the agreement. If they should plead in denial, the main issue will be on the agreement, and if proven, a reference must be ordered by interlocutory decree to state the accounts, when, preliminary to hearing, the plaintiff will have to file a detailed statement of items. This is the course pursued when in an action relating to a partnership dissolution the existence of that error is put in issue by the pleadings. The right to an accounting must be adjudicated before the exhibition of an account can be called for. This view is upheld by Cameron v. Freeman, 18 How. Pr., 313 ; McCall v. Moschcowitz, 10 Civ. Pro., 107; Powers v. Hughes, 7 Jones & Spencer, 482 .

Motion denied, with ten dollars costs.

, Thomas F. Sanxay, for app’lt; George Bethune Adams, for resp’t.

A large part of the relief applied for by the notice of motion has been supplied by the bill of particulars served under the stipulation which induced the appearance of another defendant.

And as to the agreements which in the third division of the first cause of action have been mentioned, and in the second division of the second cause of action, the statements made sufficiently disclose their terms to inform the defendant of their substantial attributes.

But the statements made of the sales in the sixth subdivision of the first, and the fifth subdivision of the second causes of action, do not supply that information which the defendant is entitled to have. Pus affidavits, taken together, do affirm the fact to be that he is without that information, and these subdivisions do no more than to aver that the cargoes were sold on the 17th and 23d of July, 1889. The defendant should be at least informed of the persons and prices to whom, and for which, the sales were made, for these facts have a direct bearing upon the amount of the loss and the extent of his alleged liability. The order should, therefore, be so far modified as to require the plaintiff to serve a bill of particulars "stating to whom the sales were made, and the prices obtained on the same. And, as so modified, it should be affirmed, without costs of the appeal.

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