Payne v. Smith — 19 Wend. 121

Majority

p. 122

Payne vs. Smith and others.

ALBANY,

June, 1838.

Headnote

Where a bill of particulars is delivered with the declaration, and the plaintiff is subsequently served with an order for a bill, he may disregard it and enter the defendant’s default for not pleading; he however cannot do so where the ordér is for further particulars.

Where a defendant is let in to defend on the merits after a default, the plaintiff is permitted to change the venue so as to enable him to obtain a speedy trial.

H. H. Martin, for the defendants, moved to set aside the default and all subsequent proceedings for irregularity. The action was commenced by the filing and service of a declaration and notice of rule to plead, on the 23d April. The declaration contained the common counts in assumpsit, to which was added the copy of a promissory note made by Smith and endorsed by the other defendants, with a notice signed by the plaintiff’s attorney, as follows : “Take notice that this suit is brought on a note, of which the above is a copy and a bill of particulars in this cause.” On the 5th May the defendant’s attorneys obtained and served an order staying the plaintiff’s proceedings until a bill of particulars

p. 123

should be delivered, The plaintiff disregarded the order, and entered a default for not pleading on the 15th MayO

A. Taber, for the plaintiff.

By the Court,

A bill of particulars was served with the declaration, and although it was furnished without any order for that purpose, the plaintiff was bound by it. Williams v. Allen, 7 Cowen, 316. If the defendants thought it insufficient, they should have applied for a further bill, or a more particular account of the demand for which the action was brought. The order for a bill of particulars, when one had already been delivered, was properly treated as a nullity. The particulars delivered were sufficiently specific, and the order was probably obtained from the commissioner without disclosing to him the true state of the case, and for the purpose of throwing the plaintiff over the Seneca circuit. But there is an affidavit of merits, and on that ground the defendants will be allowed to plead on payment of costs and consenting that the venue be changed to the county of Cayuga, which will enable the plaintiff to obtain a speedy trial.

Rule accordingly.