Purdy v. Warden — 18 Wend. 352

Majority

p. 352

Purdy vs. Warden.

Headnote

After a peremptory order that a plaintiff furnish a bill of particulars, if an evasive bill be delivered, the defendant may move for judgment of non-pros ; if, however, the bill appear to have been made in good faith, though not satisfactory, the proper course is to apply for better particulars.

The defendant moved for judgment of non-pros, on the ground that a peremptory order for a bill of particulars had been made, and that though a bill

p. 353

had been delivered, it was evasive. The plaintiff contended that the bill was not evasive, but a bona fide compliance with the order.

By the Court,

[672] Where the bill is clearly evasive, the defendant may apply for judgment of non-pros ; but if it appear to have been made in good faith, although the defendant may not be satisfied with it, he should not ask for judgment of non-pros, but ought to apply to the judge who made the original order, for an order for better particulars. The bill in this case is sufficient, and the motion must be denied.