Ward v. Littlejohn

Pratt, J. It was not essential that the affidavit should have been made by a party to the suit. It was only necessary that the affidavit should furnish the requisite proof to require the order to be made, neither was it necessary to make a new and specific demand for further particulars. It was enough to return the bill already furnished if it was defective, and demand that the previous order should be complied with, and a proper bill furnished, or to demand a further bill. The merits of furnishing a bill of particulars had already been passed upon and acquiesced in by the defendants. The order appealed from to furnish a further bill was clearly in the discretion of the judge, and we think the discretion was properly exercised. Dwight v. Insurance Co., 84 N. Y. 493. According to defendant’s theory it is necessary to try the issue first whether the plaintiffs are entitled to an accounting, and, if so, adjourn the case or send it to a referee. There is no law that requires a case to be tried by piecemeal. It may be very material on the trial to know the amounts-paid and services rendered by defendant and others set up in the counterclaim, and it is important the plaintiff should be informed in respect thereof before going to trial. It is almost a matter of course to require a bill of particulars in cases like this. Liscomb v. Agate, 51 Hun, 291, 4 N. Y. Supp. 167; Robinson v. Comer, 13 Hun, 291; Kelsey v. Sargent, 100 N. Y. 602, 3 N. E. Rep. 795. This order seems well sustained upon principle and authority, and must be affirmed, with costs and disbursements.