Marks v. Greenwald — 67 N.Y. St. Rep. 888

Majority

p. 888

Elias Marks, App’lt, v. Benjamin Greenwald et al., Resp’ts.

(New York City Court, General Term,

Filed May 28, 1895.

Headnote

Bill of particulars — When ordered.

The plaintiff, in an action against a surety for the misappropriation of funds by his principal, will be required to furnish a bill of particulars of ' his claim, to enable the defendant to frame his answer.

Appeal from an order requiring plaintiff to furnish a bill of particulars.

This case is one in which a bill of particulars could be ordered by the court upon proper application. The plaintiff sues for the misappropriation of funds by the defendant Weinberg, the defendant Greenwald being his surety. He (Greenwald) asks for an itemized statement of the plaintiff’s claim, certainly a very reasonable request to make, and one which should be granted by the court, unless the defendant Greenwald possessed the sought-for knowledge, which he denies he has, because he swears that it will be impossible for him to answer herein unless the bill of particulars requested is granted him. Therefore, because of such statement, the court had a right, in fact it was its-duty, to make the order appealed from, which is affirmed, with costs.