Winslow v. Kierski — 4 N.Y. Super. Ct. 304

Majority

p. 304

Winslow & Morris v. Kierski.

Headnote

Since the code of procedure, there is no provision nor practice requiring bills of particulars to be given.

Where the marine court rendered judgment against the plaintiff for not furnishing such a bill, after he had exhibited his complaint, for services as attorney in two specified suits since the code ; the judgment was reversed.

The plaintiff may be compelled to amend an insufficient complaint, before requiring the defendant to answer.

January 17;

January 27, 1849.

Appeal from the marine court, where Winslow & Morris sued Kierski for services as attorneys and counsellors. They filed their complaint in writing, stating among other things, their retainer by the defendant K. in October, 1848, to prosecute

p. 305

two suits in his behalf in the supreme court, specifying the same ; that they prosecuted the same until K. settled them with the parties by a compromise ; and that the services of W. &. M. in those suits were worth $84, on account of which they had been paid $34. Also, that W. & M. had paid for K., $3 34, for serving the complaint in one of those suits. On the complaint being filed in the marine court, the defendant demanded a bill of particulars of the items of W. & M.’s demand; and the court directed such bill to be given. The plaintiffs, W. & M., declined to furnish a bill of particulars, whereupon the defendant refused to answer the complaint. W. & M. then demanded judgment for want of an answer, which the court refused to grant; and on the contrary, entered a judgment non pros against W. & M., for omitting to furnish a bill of particulars.

Winslow & Morris, appellants in person.

Wightman & Clark, for the respondents.

Since the code of procedure took effect, there is no longer any provision or practice requiring bills of particulars to be given. The 135th section of the code was not applicable to the complaint below. There was no allegation, nor any reasonable inference, that the plaintiff’s demand consisted of more than twenty items.

If the complaint was insufficient, the plaintiffs might have been compelled to amend it, before the defendant could have been required to answer. But no application of that kind was made to the court below. It is clear, the court was not authorized to give judgment against the plaintiff because of his omission to furnish the particulars on the demand made.

The plaintiffs claimed against their client for services as attorneys in two specified suits. The code gave a fixed compensation for such services, for each stage of the respective suits. There could have been no surprise or want of information on the part of the defendant, as to the extent and character of the claim. Whether the claim were correct or not, would depend

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upon the evidence ; and he was at liberty to question both the retainer and the amount.

Judgment reversed.