Baremore v. Taylor — 53 N.Y. Super. Ct. 119

Majority

p. 119

GEORGE D. BAREMORE, Respondent, v. FREDERICK B. TAYLOR, Appellant.

Headnote

Bill of particulars—minuteness may he excused—excuse insufficient—time to pj'ocure particulars.

Where a party is unable to give minute particulars he may be excused from giving them, if the substantial rights of the other party may be guarded.

The verification to a vague bill of particulars by the attorney of the party, setting forth that it is true as he verily believes, and that the reason why it is not made by his client is that his client is not in the city and county of New York, and a further affidavit by the attorney that in his opinion no further particulars can be given, and that his client was then in or near San Francisco, California, furnish no sufficient excuse ; for non constat, but that the client has the means of making a competent bill, and that by correspondence he can control its form and himself verify it.

Upon proper application time to procure particulars may be given if necessary.

Before Sedgwick, Oh. J., and O’Gokman, J.

Decided March 1, 1886.

Appeal by defendant from order that within twenty days the defendant’s attorney serve upon the plaintiff’s attorneys a bill of particulars, as directed by a former order, and that in case of default a defense of payment be stricken from the answer.

The answer alleged that for “ any moneys at any time heretofore paid, laid out or expended by the plaintiff, for the defendant’s assignee, or at his request, the said plaintiff has been heretofore fully paid.” An order was made directing the defendant’s attorney to serve upon plaintiff’s attorneys the particulars of the payment pleaded in the answer. The bill of particulars served alleged, u The said defendant also paid to the plaintiff’s assignor in cash from time to time, the same being one half primage collected from carriers of freight; in many instances the said prim-age was collected by the plaintiff’s assignor himself, who would thereupon appropriate his portion thereof; no account was kept of these small payments, and the defend

p. 120

ant is unable to specify the total amount; but the amounts so paid or collected constituted full payment for all services rendered, except in the case of commission sales, when the defendant had agreed to pay the plaintiff’s assignor a brokerage or commission.”

This bill was verified by the affidavit of one of the attorneys for defendant, that the bill is true as he verily believes, and that the reason the affidavit is not made by the defendant is that he is not within the city and county of New York. The attorney made a further affidavit, which was read on the proceeding in which this appeal were taken, that in his belief no further particulars could be given, and that “ at present the defendant is at ornear San Francisco, California.”

Shipman, Barlow, Larocque & Choate, attorneys, and Solomon Hanford, counsel, for appellant.

Johnes, Benner & Wilcox, attorneys, and Henry C. Wilcox, of counsel, for respondent.

Where it is made to appear to the court that a party is unable to give minute particulars, he may be excused from giving them, if the substantial rights of the other party may be guarded. Upon proper application, time may be given to procure particulars, if necessary.

In the present case the bill of particulars is vague, and no reason is shown for the defendant not being able to be exact as to times and the description of the sums paid. The verification by the attorney does not show that the defendant himself has not the means of making a competent bill, and it does appear that by correspondence the defendant could control the form of the bill and could himself verify it, or show why he is unable to be exact. For that purpose, twenty days were given by the order appealed from, and under proper circumstances that time could be enlarged.

Order affirmed, with $10 costs and disbursements to be taxed.