Fuchs v. Morris — 46 N.Y. St. Rep. 478

Majority

p. 478

George Fuchs, Resp’t, v. John A. Morris, App’lt.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Bill of particulars—When further bill should be required.

Where the bill of particulars of a counterclaim consisting of an account assigned to defendant shows that such account is in part for an indebtedness incurred by the assignor to another person not before named in the case, the defendant should be required to give a further bill of the particulars of such claim.

Appeal from an order of special term, directing, a further bill of particulars.

Defendant set up four counterclaims to this action, the fourth of which was upon a claim assigned to defendant by one Henderson. _ A bill of particulars of this claim showed that it was for services performed for plaintiff by Henderson, who was an attorney, and one Treloar.

A. B. Cruikshank, for app’lt; Wm. W. Ladd, Jr., for resp’t.

The counterclaim was indefinite with regard to-the contract between Henderson, the assignor of the defendant, and Treloar. In fact, Treloar’s name is not mentioned in the answer ; and it is only when we look at the bill of particulars that-we see Treloar’s relation to the item of $3,871.22 claimed to have been incurred by Henderson as an indebtedness to Treloar.

The question involved should therefore be treated precisely as though Henderson (or Treloar) was himself suing for this sum, and had served a complaint substantially in the language of the bill of particulars. It would have been a matter of course under these circumstances to have required Henderson (or Treloar) to-give the particulars of such claim; and it is quite clear that the defendant should be required to do likewise. The plaintiff cannot be compelled to go to trial without knowledge of these particulars merely because the defendant is the assignee of a person who is said to have incurred the disbursement in question. It is more appropriate that the defendant, who sets up this assigned claim, should procure from Henderson (or Treloar) these particulars, than that the plaintiff should be called upon to make an inquiry with regard thereto. If the defendant is unable to. secure such particulars from Henderson or Treloar, the consequences flowing from failure in that respect should fall upon him rather than upon the plaintiff, who is simply in the position of a defendant with regard to this counterclaim, and who, like any other defendant, is entitled to the particulars of plaintiff’s claim.

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

Yan Brunt, P. J., O’Brien and Barrett, JJ., concur.