Hawes v. Foote — 60 N.Y. St. Rep. 837

Majority

p. 837

Charles H. Hawes, App’lt, v. Mary A. O. Foote, Resp’t.

(New York City Court, General Term,

Filed June 20, 1894.)

Headnote

Bill of particulars—When not compelled.

Where the facts are peculiarly within the knowledge of the defendant, the plaintiff will not be required to furnish a bill of particulars.

Alexander Melhado, for app’lt; William Blakie, for resj/ti

This action is brought to recover under an alleged special agreement whereby defendant was to pay plaintiff ten per cent, of the amount of ail moneys received by her under certain life insurance policies issued in her favor. No answer has as yet been interposed. Air order was entered herein requiring plaintiff to furnish the defendant with a bill of particulars of the services rendered by the plaintiff, and from such order this appeal has been taken. This action is on a contract to recover ten per cent., and not on a quantum meruit. The defendant ought to know whether she made a contract to pay the plaintiff ten per cent, on all moneys collected by her on insurance, and how much she collected on such policies. The facts are peculiarly within the knowledge of the defendant, and plaintiff ought not to be required to furnish a bill of particulars.

The order appealed from must be reversed, with costs.

Conlan, J., concurs.