Perzel v. Shook

By the Court.—O’ Gorman, J .In answer to the plaintiff’s complaint, and as counter-claims, the defendants alleged the assignment to them of certain claims against the plaintiff, as set off in paragraphs 14 and 16 of the answer; and also set up as a further counter-claim, in paragraph 13, the payment, &c., by defendant, of certain moneys in plaintiff’s behalf. Plaintiff replied admitting the allegations contained in the 14th and 16th paragraphs of the answer. They then made a demand fora bill of particulars of all the counter-claims. The defendants thereupon moved to set aside and strike out said demand for a bill of particulars, setting forth in their affidavit on the motion, the particulars of the only counter-claim not admitted by the plaintiff in his reply, and which amounted to $155.22. The motion was granted with ten dollars costs, and plaintiff has appealed. It is hard to see what good reason the plaintiff had for [209] requiring to be informed of the particulars of demands, which they in .their reply expressly admitted to be correct; and as to the only claim which they did not admit to be correct, the defendants in their motion-papers, supplied a bill of particulars in sufficient detail. If the question was as to the propriety of granting an order to compel defendants to serve a bill of particulars under these circumstances, the court in the exercise of the broad discretion vested in it, it would have been justified in denying the motion (Butler v. Mann, 9 Abb. N. C. 49). To leave the question as to the propriety of the plaintiff’s demand in doubt, until the case came on for trial, might prove an embarrassment and a hindrance to a speedy determination of the issues. The motion to strike out the demand was, therefore, proper ; and this practice was approved of Dowdney v. Volkening (37 Super. Ct. 313). The order appealed from is affirmed, with ten dollars costs, and the disbursements of the appeal. Sedgwick, Ch. J., concurred.