Mellen v. Mellen — 43 N.Y. St. Rep. 801

Majority

p. 801

Sarah E. Mellen, App’lt, v. Abner Mellen et al., Def’ts. A. C. & M. H. Ellis, Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Attorneys—Bill of particulars.

On reference of a claim by attorneys for services in a single action, where the affidavits used show the nature of the services, it is not error to> refuse a bill of particulars of the claim, as defendant will have an opportunity to ascertain the particulars on the hearing before the referee.

p. 802

Appeal from order denying motion for bill of particulars

H. Daily, Jr., for app’lt; G. Brainerd, for resp’ts.

The respondents as attorneys for the plaintiff commenced this action for the partition and sale of certain real estate. They remained her attorneys until July, 1889, when the appellant discontinued their services, and moved for a substitution. This motion the respondents resisted, but it was granted on condition of the plaintiff giving a bond in $2,000 conditioned for the payment of whatever amount might be found due to the: respondents, and a reference was ordered to take proof of the-services alleged to have been rendered in and about this action.. Before the matter was brought to a hearing this motion was made for a bill of particulars of the claim of the respondents for professional services alleged by them to have been rendered for the plaintiff, and of the disbursements made for her in and about this, action. This was denied upon the ground that they would have-ample opportunity before the referee to ascertain the particulars of the respondents’ claim. We see no reason for interfering; with this order.

The services which the respondents claimed to have rendered* were in and about this action and none other. They have stated generally the nature of those services in the affidavits which have-been furnished by them in these proceedings, and they will be required to prove before the referee the services rendered and their value; and the plaintiffs will have an opportunity to cross-examine the respondents iii respect to the services so rendered.. They will then be fully informed of the particulars of the respondents’ claim and will undoubtedly be afforded a reasonable opportunity to meet the claim if they have any evidence whatever to adduce in opposition thereto.

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

O’Brien and Patterson, JJ., concur.