Conner v. Hutchinson

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring. The order requiring a further account in pursuance of the fifty-sixth section of the Practice Act, is defective and insufficient. The particulars, in reference to which a further specification was required, should have been stated in the order. This was not done ; and it was error to preclude the defendant from giving evidence of the account set up in the answer. There is also another reason for holding that the exclusion of this evidence was improper. If the [282] account, as delivered, was not satisfactory, and the plaintiff intended to object to the introduction of evidence upon the subject, an order for its exclusion should have been obtained previous to the trial, and it was too late to invoke the action of the Court upon the production of the evidence. Upon both of these points we are borne out by the practice in New York, under a similar statute. In Kellogg v. Paine (8 Pr. R. 329) the Court said: “ The defendant having, upon the demand of the plaintiff, furnished an account which, upon the application for the order, was adjudged to be defective, the points in respect to which a further specification was required should have appeared in the order. This was the former practice when a further bill of particulars was required, and it is equally important now. Whether, in case of the failure of the party to comply with an order for a further account, either by delivering an insufficient account, or omitting to deliver any account at all, an application should be made, upon motion, to preclude such party from giving evidence of the account claimed in the answer, or whether the objection should be taken at the trial, is, perhaps, not very well settled. The more convenient practice undoubtedly is to have the question settled before the trial. Where an effort had been' made to comply with an order for a further account, it might operate as a surprise upon the party to meet an objection to the sufficiency of his account for the first time at the trial. In such cases at least, and I am inclined to think in all cases, it would be the better practice for the party who intends to preclude his adversary from proving an account on the ground that he has not complied with a demand or order for the particulars of such account, to apply for an order to that effect before the trial.” We express no opinion as to the sufficiency or insufficiency of the account delivered. The items must in all eases be set forth with as much particularity as the nature of the case will admit; but the law does not require impossibilities, and the party called upon to account is not subjected to the necessity of doing an impracticable thing. If the specifications are as precise and definite as he can make them, we do not see what more can be required. Judgment reversed, and cause remanded for new trial.