p. 448GEORGE D. BAREMORE, Respondent, v. FREDERICK B. TAYLOR, Appellant.Headnote
Bill of particulars—when ordered.The complaint contained three claims, viz.: for work, labor and service of plaintiff’s assignor; for money had and received of plaintiff’s assignor; for money paid, laid out, and expended by plaintiff’s assignor. The answer consisted of a general denial as to each claim, and affirmative defenses; 1st. payment to plaintiff’s assignor for services rendered and moneys paid out; and, 2nd, that defendant had fully accounted for any moneys had and received for plaintiff’s assignor. It appeared without contradiction, that plaintiff, upon demand, had furnished defendant with a bill of particulars, and therein had given him credit for every payment known to plaintiff to exist, and that, without a bill of particulars from defendant, the plaintiff would be in complete ignorance of the sums of money,, items, dates, &c., by which defendant will attempt to prove his payments to, and accountings with plaintiff’s assignor. Held, that a case was presented which called for the discretionary power of the court within the rule laid down in Witkowski v. Paramore (93 W. Y. 467); Dwight v. Germania Ins. Co. (84 H. Y. 493); 'Diossy v. Rust (46 Super. Gt. 374) ; and the order requiring the defendant to furnish a hill of particulars was a proper exercise of the power conferred by § 631 of the Code of Civil Procedure.
Before Sedgwick, Oh. J., and Freedman, J.Decided December 7, 1885.Appeal from, order requiring defendant to furnish a bill of particulars.
Shipman, Barlow, Larocque c& Choate, and Sol. Han-ford, for appellant.
The granting of the order appealed from was not a proper exercise of discretion. There is no authority for such an order in precedent or principle. A defendant is permitted to plead payment in connection with the general issue. The naked plea of payment is one which sufficiently informs the plaintiff. To require the extended amplification of this plea would be to unjustly require the defendant, notwithstanding his general denial, to lay before the plaintiff all the evidence upon which he may intend to rely to defeat the plaintiff’s claim, and that,
p. 449in a case where, as to all this evidence, the plaintiff must necessarily be informed equally ivith the defendant (Watt v. Watt, 2 Robt. 684). It is believed that no case can be-found where it has been held that a defendant will be-required to furnish a bill of particulars of his naked allegation of full payment. There are no particulars of such, a defense.Jolmes, Benner & Willcox, and Henry C. Willcox, of' counsel, for respondent.
The complaint alleges, three causes of action, viz.: 1st. Work, labor and services, of plaintiff’s assignor of the value of $1,800. 2d. Money had and received for -the use of plaintiff’s assignor,. $1,945.42. 3d. Money paid, laid out and expended by-plaintiff’s assignor at defendant’s request, to the amount, of $590.92.
The answer consists of a general denial as to each of' the causes of action, and the defense that the plaintiff’s-assignor has been fully paid for any services rendered or moneys paid, laid out or expended, and that the defendant has fully accounted for any moneys at any time-received by him for account of the plaintiff’s assignor.
Upon plaintiff’s motion for a bill of particulars concerning the alleged payments to, and accounting had. with plaintiff’s assignor, it was made to appear by the-affidavit of the plaintiff, that upon demand, he had furnished the defendant with a bill of particulars containing-the items and details of the causes of action set out in the complaint; that in such bill he had given to the defendant credit for every payment known to him to exist; that he has no knowledge or information as to the defendant having ever paid anything further than what he had been given credit for ; and that without a bill of particulars he will be in complete ignorance of the sums of money, items, dates, &c., by which the defendant will undertake-to prove his alleged payments to, and accounting had with, plaintiff’s assignor.
p. 450These matters were not denied by any counter affidavit, and as it was apparent that the plaintiff could have no personal knowledge concerning the defendant’s alleged payments to, or the accounting had with, plaintiff’s assignor, a case was presented which called for the exercise of the discretionary power of the court within tho rule as laid down in Witkowski
v. Paramore (
93 N. Y. 467 ); Dwight
v. Germania Ins. Co. (84
Ib. 493); Diossy
v. Rust (46
Super. Ct. 374).
Under the circumstances as they appeared, the order requiring the defendant to give to the plaintiff a bill of particulars concerning the alleged payments to, and the accounting had with, plaintiff’s assignor, was a proper exercise of the power conferred, by section 531 of the Code of Civil Procedure.
The order appealed from should be affirmed, with ■costs, &c.
Sedgwick, Ch. J., concurred.