Depew v. Leal — 12 N.Y. Super. Ct. 663

Majority

p. 663

Depew v. Leal.

Headnote

After a dissolution of a partnership, and an action brought by the partner entrusted with the settling of the business, against his copartner for an account, the court will not order a general bill of the particulars of the plaintiff’s claim to be furnished.

When the complaint states claims not evidenced by the books of the firm, and par

p. 664

ticulars of such claims are sought, the application should be special, and directed to the specific transactions of which particulars aré sought, and the moving affidavits should state the grounds creating the necessity, or establishing the propriety, of granting the application.

At Special Term,

May 5, 1856.

The defendant moves for a bill of the particulars of the plaintiff’s demands. The parties were partners, and dissolved, agreeing that Depew should close the business of the firm. He brings this action against Leal, to obtain an accounting, and a judgment, that either should pay to the other any sum, in which he might be found indebted. An order had been made ón defendant’s motion, that the plaintiff deposit all books and papers relating to the business, so that the defendant might inspect and take copies of them. The defendant now moves, under § 158 of the Code, that a “ bill of particulars of the claim of the plaintiff,” in this action, be furnished by him.

A. R. Dyett, for plaintiff.

Wm. H. Taggard, for defendant.

Section 158 of the Code does not apply to such a state of facts. Unless such a plaintiff makes a claim for moneys contributed to, or paid for his firm, not evidenced by, or intelligible from the entries upon the books of the firm, one partner has presumptively as much knowledge of details as the other.

To furnish a bill of particulars, is to furnish a copy of the books. When the pleadings show that claims are made, the nature or extent of which is not shown by the books of the firm, if particulars are sought, the application should be special, and directed to particular transactions, and the moving affidavits should state specially the grounds, creating the necessity, or showing the propriety of granting it.

Motion denied, with $7 costs to plaintiff, to abide the event.