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Ward v. Littlejohn

2 Silv. Sup. 589 Court Supreme Court, Second Department, General Term Decision date 1889-07-02 English

Delivered by Pratt, J.

Contents

Majority

p. 589
Jessie L. Ward et al., Respondents, v. DeWitt C. Littlejohn, Executor, etc., Appellant.
Supreme Court, Second Department, General Term
July 2, 1889.

Headnote

1. Bill of particulars. Affidavit.—A party need not make the affidavit for a bill of particulars, but it may be made by the attorney. It must furnish the requisite proof to warrant the order.
2. Same.—Where a bill of particulars is defective, it is sufficient to return it, and demand that a proper or further bill be furnished.
3. Same.—The order to furnish a further bill of particulars is in the discretion of the court.
4. Same.—Where it may be very material on the trial to know the amounts paid and services rendered by defendant and others set up in the counterclaim, and it is very important that the plaintiff be informed in respect thereto before going to trial, it is almost a matter of course to require a bill of particulars to be furnished.
Appeal from an order for an additional bill of particulars made on the affidavit of one of plaintiff’s attorneys.
Lockwood & Hill, for appellant.
George G. & T. Reynolds, for respondents.

It was not essential that the affidavit should have been made by a party to the suit. It was only necessary that the affidavit should furnish the requisite proof to require the order to be made. Neither was it necessary to make a new and specific demand for further particulars, it was enough to return the bill already furnished, if it was defective, and demand that the previous order should be complied with and a proper bill furnished, or to demand a further bill. The merits of furnishing a bill of particulars had already been passed upon and acquiesced in by the defendants. The order appealed from, to furnish a further bill, was clearly in the discretion of the judge, and, we think,

p. 590
the discretion was properly exercised. Dwight v. Germania L. Ins. Co., 84 N. Y. 493 .

According to defendants’ theory, it is necessary to try the issue first, whether the plaintiffs are entitled to an accounting, and, if so, adjourn the case or send it to a referee. There is no law that requires a case to be tried by piecemeal.

It may be very material on the trial to know the amounts paid and services rendered by defendant and others set up in the counterclaim, and it is important the plaintiff should be informed in respect thereof before going to trial. It is almost a matter of course to require a bill of particulars in cases like this. Liscomb v. Agate, 51 Hun, 291 ; 4 N. Y. Supp. 167 ; Robinson v. Comer, 13 Hun, 291 ; Kelsey v. Sargent, 100 N. Y. 602 ; 3 N. E. Rep. 795 . This order seems well sustained upon principle and authority, and must be affirmed, with costs and disbursements.

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