Talman v. Dorthy — 52 N.Y. St. Rep. 183

Majority

p. 183

Harriet M. Talman, Resp't, v. John F. Dorthy et al., App'lts.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1893.)

Headnote

Bill op particulars—Money had.

In an action for money had and received for plaintiff’s benefit, the answer admitted receiving the money, but alleged that before commencement of the action defendant disposed of and paid to arid for the benefit of plaintiff said moneys pursuant to her request. Held, that such answer was not equivalent to a general denial, and upon affidavit by plaintiff denying knowledge of the payments, a hill of particulars of the names of the parties to whom it was paid and the dates and amounts of the payments was properly ordered.

p. 184

Appeal from an order of the Monroe county court, entered December 2, 1891, directing the defendant,- Dorthy, to furnish to plaintiff a bill of particulars.

John F. Dorthy, app'lt in person; Turk & Barnum, for resp't.

The complaint alleged that the defendant,. Dorthy, as the agent of the plaintiff, received of the defendant Hevin $2,000-for the purpose of paying the same over to the plaintiff, that he neglected and refused to pay the same or any part thereof to her,, except the sum of $1,200, and that the balance of said money, viz., $800, the defendant Dorthy refused, and still refuses to pay over, and has converted the same to his own use.

The defendant by his answer admitted receiving the money, but alleges that before the commencement of the action he disposed of and paid to and for the benefit of the plaintiff the $2,000 pursuant to her request.

The plaintiff upon her affidavit, which stated that she did not know in what way the defendant disposed of and paid for her benefit the $2,000, moved the court for a bill of particulars, and, the order appealed from was made directing the defendant to deliver to the plaintiff a bill of particulars of the names of the parties to whom the money was paid, and the amount and date of each payment.

The defendant contends that his answer is in effect a general denial simply, and refers to authorities holding that when such an answer is interposed a bill of particulars will not be ordered. The difficulty with the appellant’s contention is, that he mistakes the character of his answer ; his answer admits the receipt of the money under the circumstances as stated in the complaint, and it then alleges payment thereof as heretofore stated.

It is proper that the plaintiff should be advised of the particulars of the alleged payments.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal

Dwight, P. J., Macombee and Haight, JJ., concur.