Klock v. Brennan

Mayham, J. The Code of Civil Procedure relieves a party in the first instance in a pleading from setting forth the items of an account therein alleged. Code, § 531. But the same section provides, upon a written demand, for a delivery of the copy of the account, and concludes with this general provision: “The court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.” The affidavit of the plaintiff discloses her entire ignorance of the alleged payments in the defendants’ answer alleged, and shows that she will not be able to prepare to meet the same on the trial unless furnished with a statement of the sums, items, dates, and amounts constituting the alleged payment and satisfaction set up in the answer. If payments have been made, in settlement and satisfaction of plaintiff’s claim, they must have been made at times and in amounts capable of .statements with approximate accuracy. The object of a bill of particulars is to enable a party to know with reasonable certainty the nature, character, and extent of the claim made by his adversary, and substantially the time when it accrued, so as to enable an intelligent person preparation for the trial of the same. In Matthews v. Hubbard, 47 N. Y 428, Rapadlo, J., in discussing this question, says: “The office of a bill of particulars is to apprise the defendant [party] of the items which he intends to prove upon the trial.” Clearly, the defendants could not on the trial establish their defense of payment by proof as general as the allegation in the answer. They would be required to establish payment by proof of particular amounts, aggregating an amount equal to the amount of indebtedness established by the plaintiff, and it would seem to be no hardship to apprise the plaintiff of the same by a bill of particulars. In Witkowshi v. Paramore, 93 N. Y. 467, the plaintiff in his complaint claimed to recover for moneys collected by the defendant for him, which he failed to pay over. The answer set up, in a general way, set-off against plaintiff’s assignor for moneys loaned and advanced and laid out by the defendant, at the request and for the benefit of plaintiff’s assignor, and the court says: “This was a proper case for requiring the defendant to furnish particulars of his claim. * * * ’ To meet this defense, the plaintiff was entitled to be informed of the particulars of the alleged loan, and advances in consideration of which, as alleged, the transfer was made. The order for particulars required the defendants to state the times or time and the amounts of the several advances, whether made by check or otherwise, and whether made to Liehtenbur in person, and, if not, to whom, and by what member of defendant’s firm. ” And the court held that such particulars did not call for any disclosure beyond what.may fairly be required to enable the plaintiff to prepare to meet the defense. In Barkley v. Railroad Co., 27 Hun, 516, it was held in this department that section 531 of the Code of Civil Procedure does not limit the right to demand a bill of particulars to a cause of action upon an account stated, and that the word “account,” as used in that section, applies to almost evéry claim or contract which consists 173 of several items, and the court, in pronouncing its unanimous decision, uses this language: “The complaint alleges the delivery of wood from time to time, and payments by the defendant on account thereof, from time to time. The defendant demands the items of the account. We see no reason for limiting the right to make such demand to the case of an account stated. * * * In ordinary language, the word ‘ account ’ is applied to almost every claim on contract which consists of several items, and there is no necessity for giving any limited meaning to the word as it is used in section 531 of the Code of Civil Procedure. No harm can arise to the plaintiff. He need only serve a copy of those accounts as he deems sufficient. * * * It was very unnecessary for the plaintiff to make a motion to set aside the demand, and we are not willing to say that such a motion can ever be proper. If the plaintiff is without the means of giving particulars, he can make that as an excuse, when a motion should be made for a further account, after he should have made and served the best in his power. ” On these reasons, the order setting aside the demand for a bill of particulars was reversed. It is true that in that case the motion was made by plaintiff to set aside the defendant’s demand. But there can be no difference in principle, as section 531 of the Code of Civil Procedure allows either party to make the demand for a bill of-particulars. We are therefore of the opinion that this was a proper case for furnishing a bill of particulars upon a demand, and, unless the plaintiff has lost her right to the same by loches, the order setting aside the demand should be reversed. But it is insisted that the plaintiff had forfeited her right to a bill of particulars by her delay in making the demand, and reliance is made, in support of that position, upon Masterson v. Mayor, etc., 4 Civil Proc. R. 317; Vanderzee v. Hallenbeck, 14 N. Y. St. Rep. 449; and Carrillo v. Carrillo, 6 N. Y. Supp. 305. In the first of these cases a motion was made for a bill of particulars after the cause was at issue, and on day calendar for trial, and the proof on the motion shows that the defendant had the plaintiff’s deposition taken before issue joined, in which the items and dates of the plaintiff’s claim fully appeared, and the court denied the motion, on the ground that the information was not necessary, and that the defendant, having waited until the eve of the trial, should not be permitted thus to embarrass and delay the plaintiff. In Vanderzee v. Hallenbeck, 14 N. Y. St. Rep. 447, it was held that the order for a bill of particulars rested in the discretion of the court, which, however, was subject to review on appeal, and the delay in moving for a bill of particulars is a proper subject for consideration, in the exercise of that discretion. In Carrillo v. Carrillo, 6 N. Y. Supp. 305, the court says that “ordinarily, where a motion is sustained by the affidavit of the party stating his inability to meet the charges without more particular description or statement of facts attending it, a bill of particulars will be ordered.” In this case the motion was denied, on the ground that the affidavit was not made by the party but by his attorney, and did not show that the defendant was ignorant of the nature of the charges, and that, as issues were to be found by the court, care would be taken to so frame them as to fully apprise the defendant of the particulars, and afford him a complete opportunity to meet them by proof. The motion in this case was not denied on the ground of loches in moving. The interval between the service of the amended answer and the demand in this case is from January to October, and longer than would seem to be necessary; but as the affidavit in support of the demand and bill of particulars seems sufficient, and there is no evidence of any vexatious delay, w'e think the demand should stand, and the order setting it aside should be reversed. Order reversed, and motion denied, with $10 costs of this appeal and printing disbursements. All concur.