Klock v. Brennan — 35 N.Y. St. Rep. 745

Majority

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Julia A. Klock, App’lt, v. Fannie Brennan et al., Ex’rs, Resp’ts.

(Supreme Court, General Term, Third Department,

Filed February 4, 1891.)

Headnote

Bill of particulars—Laches.

The action was for board, care and nursing of defendant’s intestate E. B. The cause was at issue January 20, 1890, and was on the calendar at three subsequent circuits and was finally by consent set for trial on November 6, 1890. On October 21, 1890, plaintiff served a demand under Code Oiv. Pro., § 581, fpr a bill of particulars. This demand required a statement of the payments, alleged by the answer to have been made to plaintiff at various times by E. B., or by others for her. Held, that the case was one where such a demand was proper and that plaintiff had not lost her right to make it by laches.

Appeal from an order setting aside plaintiff’s demand for bill of particulars “of the accounts, defenses, demands, set-offs, counterclaims and payments, stated and set forth in the defendant’s answer as follows:

First. “ The items, amounts and dates of any and all payments alleged to have been made by Electa Bixby to plaintiff in folio 4 in defendant’s answer.”

Second. “The items, amounts and dates of any and all payments alleged to have been made by Greorge Bixby and Electa Bixby in folio 5 of defendant’s answer.” :

Third. “ The items, amounts and dates of any and all payments alleged to have been made by Greorge Bixby to plaintiff for care and board of Electa Bixby in folios 5 and 6 in defendant’s answer.”

This action is brought to recover for board, care and attend: anee, by the plaintiff, of Electa Bixby, for whose support, maintenance and care it is alleged the defendant’s intestate was liable.

The cause was at issue upon complaint and answer on the 20th of January, 1890, and was on the calendar after issue at three circuits, on notice by both parties, but was on each occasion

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postponed, by order, or stipulation, and was finally, by consent of the parties and permission of the court, set down for trial for the 6th of ¡November, 1890.

On the 21st • of October, 1890, one day after the cause was set down for trial, the plaintiff serves the demand for a bill of particulars, which was set aside by an order of the special term, from which order this appeal is taken.

Jesse Stiles, for app’lt; J. W. Houghton, for resp’ts.

The Code of Civil Procedure relieves a party in the first instance in a pleading from a setting forth the items of an account therein alleged. Code, § 531. But the same section provides, upon a writ of demand, for the delivery of a copy of the account, and concludes with this general provision:

“ The court may in any case direct a bill of particulars of the claim of either party to he delivered to the adverse party.”

The affidavit of the plaintiff discloses her entire ignorance of the alleged payments in the defendant’s answer alleged, and shows that she will not be able to prepare to meet the same on the trial unless furnished with a statement of the sums, items, dates and amounts constituting the alleged payment and satisfaction set up in the answer.

If payments have been made, in settlement and satisfaction of plaintiff's claim, they must have been made at times and in amounts capable of statement with approximate accuracy.

The object of a bill of' particulars is to enable a party to know with reasonable certainty the nature, character and extent of the claitn made by his adversary, and substantially the time when it accrued, so as to enable an intelligent person to make preparation for the trial of the same. In Matthews v. Hubbard, 47 N. Y., 428 , Bapallo, Judge, in discussing this question, says: “The office of a bill of particulars is to apprise the defendant (party) of the items which he intends to prove upon the trial.”

Clearly the defendants could not on the trial establish their defense of payment by proof as general as the allegation in the answer.

They would be required to establish payment by proof of particular amounts aggregating an amount equal to the amount of indebtedness established by the plaintiff, and it would seem to be no hardship to apprise the plaintiff of the same by a bill of particulars.

In Witkowski v. Paramore, 93 N. Y., 467 , the plaintiff in his complaint claimed to recover for moneys collected by the defendant for him, which he failed to turn over. The answer set up in a general way set-off against plaintiff’s assignor for moneys loaned and advanced, and laid out by the defendant at the request and for the benefit of plaintiff’s assignor, and the court says:

“ This was a proper case for requiring the defendant to furnish particulars of his claim. * * * To meet this defense the plaintiff was entitled to be informed of the particulars of the alleged loan and advances in consideration of which, as alleged, the transfer was made.

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“ The order for particulars required the defendants to state the times, or time, and the amounts of the several advances, whether made by check or otherwise, and whether made to Lichtenheim in person, and if not, to whom, and by what member of defendant’s firm.”

And the court held that such particulars did not call for any disclosure beyond what may be fairly required to enable the plaintiff to prepare to meet the defense.

In Barkley v. The Rensselaer & Saratoga R. R. Co., 27 Hun, 516 , it was held in this department that § 531 of the Code of Civil Procedure does not limit the right to demand a bill of particulars to a cause of action upon an account stated, and that the word account as used in that section applies to almost every claim or contract which consists of several items, and the court in pronouncing its unamious decision uses this language:

“ The complaint alleges the delivery of wood from time to time and payments by the defendant on account thereof from time to time. Thedefendant demands the items of the account. We see no reason for limiting the right to make such demand, to the case of an account stated * * *.

“ In ordinary language the word account is applied to almost every claim on contract which consists of several items, and there is no necessity for giving any limited meaning to the word as it is used in § 531 of the Code of Civil Procedure.

“Ho harm can arise to the plaintiff. He need only serve a copy of those accounts as he deems sufficient. * * *

“ It was very unnecessary for the plaintiff to make a motion to set aside the demand and we are not willing to say that such a motion can ever be proper.

“ If the plaintiff is without the means of giving particulars he can make that as an excuse, when a motion should be made for a further account, after he should have made and served the best in his power.”

On these reasons the order setting aside the demand for "a bill of particulars was reversed.

It is true that in that case, the motion was made by plaintiff to set aside the defendant’s demand. But there can be no difference in principle, as § 531 of the Code of Civil Procedure allows either party to make the demand for a bill of particulars.

We are, therefore, of the opinion that this was a proper case for furnishing a bill of particulars upon a demand, and unless the plaintiff has lost her right to the same by laches, the order setting aside the demand should be reversed.

But it is insisted that the plaintiff had forfeited her right to a bill of particulars by her delay in making the demand, and reliance is made in support of that position upon, Masterson v. The Mayor, 4 Civ. Pro., 317; Vanderzee v. Hallenbeck, 14 N. Y. State Rep., 449, and De Carrillo v. Carrillo, 53 Hun, 351 ; 25 N. Y. State Rep., 423.

In the first of these cases a motion was made for a bill of particulars after the cause was at issue and on day calendar for trial, and the proof on the motion shows that the defendant had the

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plaintiff’s deposition taken before issue joined, in which the items, and dates of the plaintiff’s claim, fully appeared, and the court denied the motion on the ground that the information was not necessary, and that the defendant having waited until the eve of the trial should not be permitted thus to embarrass and delay the-plaintiff.

In Vanderzee v. Hollenbeck, 14 N. Y. State Rep., 447, it was held that the order for a bill of particulars rested in the discretion of the court, which, however, was subject to review on appeal, and the delay in moving for a bill of particulars is a proper subject for consideration in the exercise of that discretion.

In De Carrillo v. Carrillo, 53 Hun, 359 ; 25 N. Y. State Rep., 423, the court says that “ ordiniarily where a motion is sustained by the affidavit of the party stating his inability to meet the charges without more particular description or statement of facts attending it, a bill of particulars will be ordered.”

In this case the motion was denied on the ground that the affidavit was not made by the party, but by his attorney, and did not show that the defendant was ignorant of the nature of the charges, and that as issues were to be.found by the court, care would be taken to so frame them as to fully apprise the defendant of the particulars, and afford, him a complete opportunity to meet them by proof.

The motion in this case was not denied on the ground of laches in moving.

The-interval between the service of the amended answer and ■the demand in this case is from January to October, and longer than would seem to be necessary, but as the affidavit, in support of the demand and bill of particulars, seems sufficient, and there is no evidence of any vexatious delay, we think the-demand should stand, and the order setting it aside should be reversed.

Order reversed, and motion denied, with ten dollars costs of this appeal and printing disbursements.

Learned, P. J., and Landon, J., concur.