Mathushek Piano Manufacturing Co. v. Pearce — 50 N.Y. St. Rep. 34

Majority

p. 34

The Mathushek Piano Manufacturing Co., Resp’t, v. James Pearce, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Bill of pabticulabs.

In an action to recover the value of certain pianos consigned to defendant for sale between certain dates the bill of particulars served consisted merely of a list of the numbers and price of certain pianos, to the amount of the balance. Held, that this was not sufficient; that defendant was entitled to a bill showing the date of delivery of all pianos during the time claimed in the complaint, and also the several payments on account, with the dates thereof.

Appeal from order denying motion of defendant for a further bill of particulars.

J. H. W hitelegge (D. McMahon, of counsel), for app’lt;

J. W. Alexander (J. F. Daly, of counsel), for resp’t.

The complaint avers that pianos of the value of $65.112.05 were delivered by the plaintiff to the defendant between the 14th of July, 1881, and the 10th of February, 1891, and that the defendant has paid on account thereof $43,183.09, and claims to recover a balance of $21,928.96. The defendant demanded a bill of particulars, and the plaintiff served a bill of particulars showing the balance due upon the pianos as alleged in the complaint. The bill of particulars does not show the pianos delivered between the dates and prices of the pianos stated in the complaint, nor does it show the dates and amounts of the pay-

p. 35

merits thereon. Without such a statement the defendant cannot properly prepare for trial. He must meet a general claim to a very large amount, with a general credit to a very large amount also ; but he will have only a statement of balance claimed on pianos designated with certain numbers and letters. This claim will be subject to the general payments, and these payments will need the entire list of property below the prices mentioned in the complaint during which the property was delivered and for which a claim is made°to be reduced by the general sum of payments. It may be that there is the balance claimed on the designated pianos less specific payments thereon and still there be no balance in the general account.

The order should, therefore, be reversed with costs and disbursements, and the motion granted that the plaintiff furnish the date of the delivery of all pianos during the time claimed in the complaint, and also the several payments in account with the dates-thereof, with ten dollars costs of the motion at special term to abide event.

Pratt, J., concurs; Dykman, J., not sitting.