Perzel v. Shook — 50 N.Y. Super. Ct. 206

Majority

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WILLIAM PERZEL, Appellant, v. SHERIDAN SHOOK, et al., Respondents.

Decided March 21, 1884.

Headnote

Bill of particulars—motion to strike out demand for—when granted.—Practice.

Defendants set up in the answer three counterclaims—two for work, labor and services, and the third for moneys paid, laid out and expended for plaintiff. The reply admitted the counter-claims based on work, labor, &c., and plaintiff thereupon demanded “abill of particulars” of all the counter-claims. Defendants moved to strike out said demand, the moving affidavit furnishing full particulars of the only counter-claim not Admitted by plaintiff, which motion was granted.

Reld, that defendants pursued proper practice in moving to strike out said demand, and that the motion was properly granted.

Before Sedgwick, Ch. J., and O’Gorman, J.

Appeal from order striking out demand for bill of particulars.

Plaintiff brings this action to recover thirteen hundred and twenty-six dollars for breach of contract.

The answer, among other things, sets up three counterclaims, two of them for work labor and services performed for plaintiff by parties who are alleged to have assigned their claims therefor to the defendants, and the third alleges “ that between the 20th day of August and the 1st day of September, 1883, defendants laid but and expended for the plaintiff and at his request, for gas, labor, and materials, and paid and advanced to plaintiff, the sum of one hundred and fifty-five dollars and twenty-two cents.”

The plaintiff replied admitting the performance of the work, labor and service alleged in the answer as the basis of the first and second counter-claims but denied the third counter-claim, paragraph 13 of the answer.

Plaintiff then served on defendants a demand for a bill of particulars of all the counter-claims set up in the answer.

The defendants moved to strike out the demand for a bill of particulars, and in the affidavit set forth the particulars of the third counter-claim. The motion was granted

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and from the order striking out that demand the plaintiff brings this appeal.

Stafford & Graff, for appellant.

The word account, as used in section 531 of the Code, means any indebtedness consisting of several items. The absolute right of a party to demand a copy of an account pleaded is not limited to an action on an account stated (Fullerton v. Graylord, 7 Rob. 556 ; Dowdney v. Volkening, 37 Super. Ct. 318; Barkley v. Rens. & S. R. Co., 37 Hun, 516 ).

The court had no power to strike out appellant’s demand for a bill of particulars. (1.) The counter-claims alleged in the answer are all accounts, within the meaning of that word as used in section 531 of the Code. The right to demand the bill of items of these accounts is absolute in the plaintiff, and the court has no coritrol over it. The statutory provision is that when a party alleges an account, but does not set forth a copy of it, he “ must deliver to the adverse party, within ten days after the demand thereof, a copy of the account.” The next sentence in section 531 makes the granting of a bill of particulars discretionary with the court, thus emphasizing the fact that in the case provided for in the preceding sentence, the court has no discretion or power. (3.) But the power of the court to strike out a demand in any case is denied (Barkley v. Rens. & S. R. Co., 27 Hun, 516 ). Even incases where the right is not absolute, the proper practice is to make the demand before moving in court to get particulars (Shaffer v. Holm, 28 Hun, 268 ), and if the party upon whom the demand is made does not choose to comply, the proper practice is for him to remain inactive, and for the party who has even the absolute right to move at special term to have evidence of items of which particulars have been refused precluded on the trial (Moore v. Belloni, 43 Super. Ct. 190).

T. Albert Hnglehart, and A. A. Cauldwell, for respondents.

The motion to strike out was regularly made and is the correct practice (Dowdney v. Volkening, 37 Super. Ct. 313).

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The demand was clearly irregular as to the counterclaims in the fourteenth and sixteenth paragraphs. These counter-claims weré by the reply, expressly admitted. The plaintiff, therefore, could not benefit by any particulars of the same, and it follows defendants should not be compelled to perform the useless labor of preparing and serving same (Dowdney v. Volkening, supra).

The demand was clearly irregular as to the counterclaim in the thirteenth paragraph, (a.) Section 531 of Code provides the manner of procuring: 1. Copy account, 2. Bill of particulars. If an “account” is desired, it is only necessary to serve a demand. If a bill of particulars is desired the court may direct the same. The plaintiff’s counsel, expressly desiring a “bill of particulars” and not a “ copy account,” attempted to procure it by “ demand,” although it could only be obtained by order of the court. This should not be permitted, for the court-is not compelled to direct a bill of particulars, the language of the Code being that the court “may, in any case, direct.”

.In answer to the plaintiff’s complaint, and as counter-claims, the defendants alleged the assignment to them of certain claims against the plaintiff, as set off in paragraphs 14 and 16 of the answer; and also set up as a further counter-claim, in paragraph 13, the payment, &c., by defendant, of certain moneys in plaintiff’s behalf. Plaintiff replied admitting the allegations contained in the 14th and 16th paragraphs of the answer. They then made a demand fora bill of particulars of all the counter-claims. The defendants thereupon moved to set aside and strike out said demand for a bill of particulars, setting forth in their affidavit on the motion, the particulars of the only counter-claim not admitted by the plaintiff in his reply, and which amounted to $155.22. The motion was granted with ten dollars costs, and plaintiff has appealed.

It is hard to see what good reason the plaintiff had for

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requiring to be informed of the particulars of demands, which they in .their reply expressly admitted to be correct; and as to the only claim which they did not admit to be correct, the defendants in their motion-papers, supplied a bill of particulars in sufficient detail. If the question was as to the propriety of granting an order to compel defendants to serve a bill of particulars under these circumstances, the court in the exercise of the broad discretion vested in it, it would have been justified in denying the motion (Butler v. Mann, 9 Abb. N. C. 49 ).

To leave the question as to the propriety of the plaintiff’s demand in doubt, until the case came on for trial, might prove an embarrassment and a hindrance to a speedy determination of the issues. The motion to strike out the demand was, therefore, proper ; and this practice was approved of Dowdney v. Volkening (37 Super. Ct. 313).

The order appealed from is affirmed, with ten dollars costs, and the disbursements of the appeal.

Sedgwick, Ch. J., concurred.