De Gregori v. Saitta

Hatch, J.: The action was brought to recover the sum of $390, with interest from July 1, 1894, money loaned to the defendant by the Hew York Fruit Importing Company, of which company the plaintiff was made receiver prior to the commencement of the action. Inter alia, the defendant interposed as an affirmative defense that he was employed by the importing company as its general manager, at a salary of $25 a week, and that in addition thereto it was agreed that he was to receive further and additional compensation for extra work performed outside of regular business hours and in the nature of night work; that in accordance with such agreement he did perform such services; that all the moneys paid by the importing company to the defendant, over and above the amount of his salary, were paid to him on account of such extra work and as part payment of his additional compensation, and that at the time of the dissolution of the importing company it was indebted to the defendant in divers sums of money over and above that claimed to have been loaned and to recover which the action was brought. It is, therefore, - clear that this answer raised a vital issue in the case, for if the plaintiff could show the arrangement which he averred in his answer, and that the compensation to which he was entitled therefor was greater in amount than the sum loaned, as claimed by the plaintiff, it would' defeat the plaintiff’s cause of action. Upon the trial, however, when testimony was offered tending to establish this defense, upon the objection of plaintiff’s counsel it was excluded on the ground that the defendant had failed to serve upon the plaintiff a bill of particulars of such claim. It does not appear from the return of the justice that at the time when issue was joined any request was made of the defendant to furnish a bill of particulars, of his account in this regard or any other; nor does there appear in the record any demand made by the plaintiff upon the defendant to serve such bill of particulars. The first that appeared in respect thereto was upon the trial of the action, when the defendant sought to prove the rendition of extra service and the arrangement under which it was performed. It is manifest that the ruling of the court in this regard was error, for which the judgment must be reversed. Section 229 of the Code of Civil Procedure provides that when issue is joined, the court, upon the request of [478] either party, may require the adverse party to exhibit his account or demand, or to state the nature thereof, and in case of failure to comply with such request the court may preclude the party from giving evidence of such parts thereof as have not been exhibited as stated. By the terms of the Code, therefore, the court was not authorized to exclude the proof, because no such penalty had been incurred. There had been neither request at the time when the issue was joined, nor any order made requiring the defendant to exhibit his account in this respect. The demand for a bill of particulars after the trial was begun was unauthorized and ineffectual for any purpose. (Rosen v. Rosenthal, 22 Misc. Rep. 143.) The purpose- of the bill and of the order requiring it to be delivered is to apprise the party of the specific demands of his adversary; but the demand must be made under such circumstances as will give the party an opportunity to comply with it and cannot be insisted upon when the request would operate to the surprise and prejudice of the party. The Code provides a simple, plain and direct method of procedure, and before a penalty may be inflicted compliance must be had with its provisions. As there was an utter failure in this case to make such request, as required by the Code, the judgment should be reversed and a new trial ordered. All concurred. Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.