Bien v. Hellman — 46 N.Y. St. Rep. 250

Majority

p. 250

Julius Bien et al., App’lts, v. Theodore Hellman, Impl’d, Resp’t.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

Bill of pabticulabs—When should be denied.

A bill of particulars of the contract and demand sued upon in an action, against alleged partners should not be ordered on the application of one of the defendants before answer where such defendant shows that he was not a partner of "the others or interested in their business; that he never had any dealings with plaintiffs, and that if the agreement was in writing with his signature it was a forgery.

Appeal from an order of the special term directing service of a bill of particulars by the plaintiffs upon the defendant..

Franklin Bien, for app’lts; George W. Seligman, for resp’t.

The complaint is founded upon a theatrical contract alleged to have been made by the respondent and two other defendants as copartners in a certain theatrical business.

The particulars which were ordered to be furnished were as to

(a) The nature of the agreement sued on, whether oral or in writing;

(b) The nature and items of the theatrical printing and of the materials therefor alleged in the complaint to nave been furnished

p. 251

to the defendants, and of those alleged in the complaint to have "been delivered to the defendants ;

(c) The items of the credit of $1,115.50 to which the defendants are alleged in the complaint to be entitled.

The order having been made before answer, it was incumbenti upon the moving defendant to establish a necessity for the granting of the order at that stage of the litigation in order to enable him to prepare his answer to the complaint, which was for a certain balance due upon the alleged contract.

But the said defendant himself showed that he never was a partner of the co-defendants; that he never had any dealings with the plaintiffs; that he never was interested in business with the co-defendants in any way or manner, and that if there is any agreement in writing with his signature, it is a forgery.

Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish ■ a bill of particulars, for the defendant showed his ability to positively deny all the allegations of the complaint.

The order should be reversed, with ten dollars costs, etc.

Sedgwick, Ch. J., and McAdam, J., concur.