Weiler v. Mooney — 9 N.Y. St. Rep. 651

Majority

p. 651

Lotta Weiler, Resp’t, v. William Mooney, impleaded, etc., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 25, 1887.)

Headnote

Practice—Bill op particulars—When discretionary

In a judgment creditor’s action to set aside a release as fraudulent, the answer denied the allegations of the complaint and alleged that at the date of the release the releasor was indebted to the defendant in a large sum of money, being for money advanced, etc., and that in consideration thereof he made and delivered the release to the defendant The court ordered a bill of particulars as to said clause in the answer Held, that if the clause was to be retained, the bill of particulars ordered was within the discretion of the special term.

Appeal from an order of the Monroe special term, requiring the defendant to deliver to the plaintiff a bill of particulars.

Harris & Harris, for app’lt; James Murphy, for resp’t.

This action was brought by the plaintiff as a judgment creditor to set aside the release set forth in the complaint, upon the ground that the same was made by collusion, with intent to defraud the plaintiff. The answer denied the allegations of the complaint in regard to fraud and want of consideration, and alleged that at the date of the release William Mooney, the uncle, was indebted to the defendant William Mooney, the nephew, m a large sum of

p. 652

money, to_wit: In the sum of upwards of fifteen hundred dollars, being for money advanced by the defendant William Mooney, the nephew, to William Mooney, the uncle, and for which the uncle had for or on account of the rent of the premises in the complaint referred to, and that being so indebted he, the uncle, in consideration thereof, made and delivered to the defendant, the nephew, the release in the complaint mentioned. It was upon this clause of the answer that, the court ordered a bill of particulars.

The appellant now contends that the allegation was unnecessary and that all the evidence he desired to give could be given under his general denial, and he now offers to amend by striking this clause out of the answer.

The inserting of the allegation in the answer doubtless led the plaintiff to suppose that it was there for some purpose, and if it is to be retained, the bill of particulars ordered is properly -within the discretion of the special term.

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

Smith, P. J., and Bradley, J., concur.