Watt v. Watt — 25 N.Y. Super. Ct. 685

Majority

p. 685

James Watt, Jr. plaintiff and respondent, v. Archibald Watt, defendant and appellant.

Headnote

1. An order directing the defendant to deliver to the plaintiff an account in " writing of the particulars of the payment or payments of the plaintiff’s demand, and of the set-off alleged in the answer, or show cause why he should not deliver such account, &e. is-not appealable.

2. Where the answer sets up a full and complete defense by averring the absolute payment of the whole amount due the plaintiff, and satisfaction of his claim, the plaintiff cannot require a hill of particulars of the payments set up in the answer, under section 158 of the Code.

3,. If the answer, in such a case, is defective in any particular in which it ought to be precise, the remedy is by motion.

(Before Robertson, Ch. J., and Barbour and McCunn, JJ.)

Heard May 7, 1864.

Appeal from an order made at special term.

The complaint alleged that the defendant, on the first day of January, 1841, at the city and county of Few York, was indebted to the plaintiff, in the sum of twenty thousand dollars, for money before that time lent and advanced by the plaintiff to the defendant, and at the special instance and request of the said defendant; and for other money by the plaintiff before that time paid, laid out and expended for the defendant, and at the like request of the defendant; and for other money by the defendant before that time had and received to and for the use of the plaintiff; and being so indebted, the defendant, in consideration thereof, afterwards, to wit, on &c. at the place aforesaid, undertook, and then and there promised the plaintiff to pay him the said sum of money on request. And that the defendant afterwards," to wit, on &c. and at the place aforesaid, accounted together with the plaintiff of and concerning divers other sums of money before that time due and owing from the defendant to the plaintiff, and being in arrear and unpaid ; and upon such accounting the defendant was found to be in arrear and indebted to the plaintiff in the further sum of twenty thousand dollars ; and being so found in arrear and 'indebted to the plaintiff, the defendant, in consideration thereof, after-.

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wards, to wit, on &c. undertook, and promised the plaintiff well and truly to pay him the said sum of money last mentioned,- when he the defendant should he thereunto afterwards requested. A neglect and refusal to perform was then alleged.

The defendant, in his answer, denied generally the allegations of the complaint, and alleged that all moneys due and owing from him to the plaintiff for or by reason .or on account of any of the matters in the complaint alleged, were, prior to the commencement of this action, paid and satisfied ; that heretofore, and prior to the commencement of this action, the plaintiff and the defendant had mutual dealings and transactions ; in the. course of which said dealings the defendant paid, laid out and expended divers sums of money for and on behalf, and at the request of the plaintiff, and said plaintiff became indebted to the defendant therefor, .and for ■ money by him had and received to and for the use of the defendant, apd on other accounts, in a large sum of money; and after crediting the plaintiff with all moneys with which he was entitled to be credited, there was due and owing from the plaintiff to the defendant, at the timé of the commencement of this action, a balance of said account, amounting to a large sum of money, to wit, the sum of twenty thousand dollars, which amount the defendant claimed from the plaintiff.

The plaintiff put in a reply denying that there was due and owing from the plaintiff to the defendant, at the time of the commencement of this action, or is now due, a balance of account amounting to a large sum of money, to wit, the sum of twenty thousand dollars, or any other sum whatsoever.

The plaintiff, upon the pleadings and affidavit, applied to •the court, at a special term, and obtained an order directing that the defendant’s attorneys deliver to the plaintiff's attorney an account in writing of the particulars of the payment or payments of the plaintiff’s demand in this action, and also of the set-off against the plaintiff’s demand in this action, alleged in the answer of the defendant, by a day specified, or show cause why the defendant should not deliver spch account, or in

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default of doing so, why he should not be precluded at the trial from giving evidence of said alleged payment and set-off.

From that order the defendant appealed.

C. Burrill, for the defendant, (appellant.)

D. D. Lord, for the plaintiff, (respondent.)

It was not necessary in this case, to obtain any order of the court for the delivery of a bill of particulars by the' defendant, if the set-off was of an account. within the meaning of the 158th section of the Code, It would only have been necessary .in case it was a claim within the meaning of the last clause of such section, and not an account. What is meant by an account in such section, is not very clear. It requires a copy of an account alleged in a pleading, to be delivered in ten days after a demand thereof, “ which (copy,) if the pleading is verified, must be verified by” the oath of the party or his agent that “ he believes it to be true.” The meaning of being, true is equally obscure; a copy that is true means nothing more, than a correct transcript of some original; it does not at all resemble the verification required pf a pleading by the preceding section. In the very outset it speaks of the allegation of an account, and not items forming one. Perhaps, however, it may be gathered from .the' whole section, that its object was to prevent prolixity in pleading, and to substitute a list of items in a separate inventory for their insertion in a pleading, in analogy to. a bill of particulars as required under the 'prior practice, resembling, somewhat, a bill of parcels. (Bagley’s Pr. 204.) If that be the proper meaning of account, in such section, the plaintiff was entitled to demand of the defendant such an account of his set-off, and on proof of service of such demand, and a failure to comply therewith, to preclude him from giving any evidence thereof.

I think it extremely doxxbtful whether the plaintiff could ' require a bill of particulars of the payments set up in the answer. Partial payments of money, to be applied to an

Concurrence

p. 688

account generally, do not constitute a defense either to the whole or any part of the items composing it; they merely mitigate the damages, and therefore need not be pleaded, or they may amount to an offset. If pleaded, they would not give the plaintiff any more right to.a bill of particulars than he would have had if they had not been pleaded. Payment in full satisfaction and extinguishment of a claim must be pleaded, in order to be given in evidence, because it is a defense. If the mode of pleading it be defective, the remedy is by a demurrer, or motion to make definite and certain. I cannot understand the answer as setting up any thing but a full and complete defense by the absolute payment of the whole amount due the plaintiff, and satisfaction thereby of his claim. If defective in any particular in which it ought to be precise, the remedy is by motion.

But the plaintiff has not yet obtained any effective or final order affecting the merits of the case, or a substantial right. The order appealed from is merely one to show cause, in case the defendant did not furnish the required bill of particulars within the time specified. If the court, at special term, should commit any error on hearing that motion, it may be corrected on appeal; but the present is not an appealable order, under the 349th section of the Code, and the appeal, therefore, should be dismissed, with costs.

McCunn, J. concurred.

I concur in the conclusion of the chief justice, upon the.ground that the order is not ah appealable one.