Husson v. Oppenheimer — 45 N.Y. St. Rep. 618

Majority

p. 618

Joseph Husson, Resp’t, v. Jacob Oppenheimer and Albert I. Sire, App’lts.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.).

Headnote

Bill of particulars—Monet retained for taxes.

In an action to recover a sum of money retained by the defendant on a. real estate transaction, to indemnify Mm against tax sales appearing on a tax search which was left in his possession, which tax sales are averred to-be invalid, a motion by defendant for a bill of particulars is properly denied.

Appeal from order denying defendant’s motion for a bill of" particulars. The facts sufficiently appear in the opinion.

Albert I Sire, for app’lts; Joseph Husson (D. McMahon, of counsel), for resp’t. v'

The complaint avers that upon a conveyance by the plaintiff to the defendant of lands in Kings county, there was retained the sum of $450 to indemnify the defendant in case he had to pay some old sales for water rates on the property. That the money was retained in 1886, and that the defendant has never-been called upon to pay the money and has never paid it. That-the sales were illegal and invalid. The complaint avers also that these water taxes were upon the property sold. The papers show that the money was retained on a tax search which defendant producéd. No case is made fora bill of particulars. The deposit of money, the date, the transaction under which it was made, the property on which the tax was supposed to be assessed and the invalidity of the entire taxes and sales under them, make out, if proven on the trial, a good cause of action; and a bill of particulars cannot give any more specific information as to the facts out of which the claim is charged to arise than is given in the complaint.

The order denying the motion shonld therefore be affirmed, with costs and disbursements.

This is an appeal from an order denying a motion to-require the plaintiff to furnish a bill of particulars.

There is no merit in the appeal. The complaint set out only one-cause of action, which was for a specific sum of money, $450, deposited with the defendant to indemnify him against certain supposed taxes which defendant claimed were a lien upon certain

p. 619

real estate conveyed to him by the plaintiff, as appeared upon a tax search in possession of the defendant which he retained.

It, therefore, appeared that the defendant knew all about the matter much better than the plaintiff, besides, there was only one item to be proved, to wit, that the $450 was left in defendant’s hands to pay taxes which were never paid as they were no lien, upon the premises.

It is hard to believe that this motion and appeal are for any other purposes than to delay the trial of the case.

If the defendant desires to know what taxes or water rates were referred to in the contract for which the money was deposited, he lias only to look at the tax search in his own possession which he produced at the time of the conveyance and upon which he made his claim for indemnity.

Order affirmed, with costs and disbursements.

Dykmak, J., not sitting.