Fassett v. Dorr — 11 N.Y. 177

Majority

p. 178

*Fassett vs. Dorr.

Headnote

An cider for a bill of particulars nisi, with a stay of proceedings, ceases to operate as a stay, if a peremptory order be not subsequently detained.

The declaration was served in this case, on the eighth day of August, 1833. On the sixteenth, the defendant obtained an order for a bill of particulars, or that the plaintiff show cause on the twenty-fourth- of August, and that in the mean time all proceedings stay. On the day appointed, the plaintiff’s attorney appeared before the judge to show cause ; no one appeared for the defendant, and no peremptory order for a bill of particulars was granted. The plaintiff did not deliver a bill of particulars, and not having received a plea, the defendant’s default for not pleading was entered, and the judgment perfected, and execution issued. The defendant moved to set aside the default, and subsequent proceedings for irregularity, and on the merits.

D. Russell, for the defendant,

insisted that the default had been irregularly entered ; that the original order stayed the plaintiff until the delivery of a bill of particulars, and that the defendant was not bound to serve a peremptory order for any purpose other than to non-pros the plaintiff, 9 Wendell, 443 ; and if it need not be served, why obtain it 1 On the merits, at all events, the defendant was entitled to relief.

I. Williams, contra.

By the Court,

So far as the defendant relies on irregularity, he fails. The order of the sixteenth of August, to stay proceedings, was spent the twenty fourth, as it was not continued by a peremptory order. Andrews v. Cleveland, 3 Wendell, 437. It is true that the peremptory order need not be served for any purpose but to non-pros the plaintiff, but still it must be obtained ; the defendant must show that he is in earnest in his application for the bill of particulars; *and that it is not made merely for delay. Here the plaintiff attended before the judge prepared to show cause, but no application was made for a peremptory order. The case of Rowan v. Merritt, 9 Wendell, 443, does not conflict with Andrews v. Cleveland. The court say, in Rowan v. Merritt, that the portion of the original order, staying proceedings, is operative until the delivery of the bill of particulars, provided a peremptory order be granted ; a peremptory order was obtained, in that case although it was not served. Here no such order was obtained, and consequently the original order ceased on the twenty fourth to be a stay. The defendant is, however, entitled to relief on the merits. The chief justice acccordingly directed a rule to be entered, permiting the defendant to plead on terms.