Talman v. Dorthy — 75 N.Y. Sup. Ct. 329

Majority

p. 329

Harriet M. Talman, Respondent, v. John F. Dorthy, Appellant, Impleaded with Susan Nevin.

Headnote

Bill of pm'tieulars'.

A complaint alleged that the defendant, as the agent of the plaintiff, received from another party a certain sum for the purpose of paying the same over to the plaintiff; that the defendant neglected and refused to pay over the same, except a specified amount thereof, and that the balance, stating it, the defendant refused and still refuses to pay over, and has converted to his own use.

The answer admitted the receipt of the money, and then alleged that before the commencement of the action the defendant had disposed of and paid to and for the benefit of the plaintiff the whole amount, pursuant to the plaintiff’s request.

Held, that this answer was not in effect a general denial, and that the plaintiff was entitled to a bill of particulars of the namts of the parties to whom the money was paid by the defendant, and the amount and date of each payment.

Appeal by tbe defendant, John F. Dortby, from an order of tbe Monroe County Court, entered in tbe office of tbe clerk of that county on tbe 2d day of December, 1891, directing tbe said defendant to furnish to tbe plaintiff a bill of particulars.

John F. Dorthy, for tbe appellant, in person.

Turk <& Barnum, for tbe respondent.

Tbe complaint alleged that tbe defendant Dortby, as tbe agent of tbe plaintiff, received of tbe defendant Nevin, $2,000 for tbe purpose of paying tbe same over to tbe plaintiff; that be neglected and refused to pay tbe same or any part thereof to her except tbe sum

p. 330

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 alleged 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 inoney 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 fróm should be affirmed, with ten dollars costs and disbursements of the appeal.

All concurred.

Order of the County Court of Monroe county appealed from affirmed, with ten dollars costs and disbursements.