Diossy v. Rust

Headnote

Bill of particulars—when allowed.

Plaintiff having sued defendant, an attorney, for the conversion of a certain draft and the moneys collected thereon, claiming title thereto by assignment from one D., defendant in his answer alleged that the draft was received by him under an agreement with D., by which he was to collect the sum due thereon and credit D. with the net amount collected, on account of moneys which he alleged were due to him from D. for professional services and otherwise, and on account of divers contracts, &c., assumed by him for D. In another subdivision of his answer, he further alleged that said agreement having been carried out, D. had executed and delivered to him a general- release of and from all claims.

Held, that plaintiff was entitled to a bill of particulars of defendant’s , first defense, notwithstanding the fact that another of the defenses relied on was a general release.

Appeal from an order directing the defendant to serve a bill of particulars.

The plaintiff, claiming to be the owner, by assignment from one Doody, of a draft for $1,000, drawn to the order of Doody by one Patrick Brennan, upon one Henry Heyman, on November 1,1876, and duly accepted by Heyman, sues, alleging substantially a conversion of the draft and of $800 collected upon it by the defendant, who is an attornéy. The assignment of the draft to the plaintiff is alleged to have been made September 27, 1877. The defendant, among other defenses, alleges that the draft was put in his hands for collection by Doody, the owner, upon the agreement between Doody and himself that he should place the proceeds, above

the expense of collection, to the credit of Doody, on account of divers moneys then and theretofore owing to him by Doody, and on account of contracts, liabilities and obligations then and theretofore assumed by him for Doody ; that Doody was largely indebted to him for professional services (to the amount of at least $1,100). In another subdivision of his answer the defendant alleges that he having performed all the conditions on his part, to be performed by said agreement, by applying the money coming to him as he was directed by his agreement with Doody, Doody released and discharged him from every obligation growing therefrom, and “growing out of any other matter or thing from the . beginning of the world.” The plaintiff demanded a bill of particulars. It was not furnished. Thereupon a motion was made before the late Chief Judge Curtis for a bill of particulars, or that the answer be made more definite and certain. The order granted directed the defendant to grant a bill of particulars :

First. As to the contracts, liabilities and obligations alleged in the answer to have bpen assumed by the defendant for Doody, and of the moneys stated to be due from Doody to the defendant.

Second. Of the time, place and amounts of the indebtedness mentioned in the eleventh paragraph of the answer—that is, “a large indebtedness from said Doody to this defendant, and this defendant at said time was largely obligated and liable for certain matters to outside parties for said Doody.”

Third. As to the moneys mentioned in the twelfth paragraph of the answer as having been paid by the defendant, &c.; and,

Fourth. As to • the indebtedness for professional services.

From that order the defendant now appeals to this court.