Barreto v. Rothschild

87 N.Y.S. 553 | N.Y. App. Div. | 1904

Ingraham, J.:

.It was stated by the court below in granting this motion, and is conceded by the respondent upon this appeal, that if the defendant had contented himself with a denial of the plaintiff’s allegation of performance, he would not have been required to state the particulars of his denial; but it was held that because, not content with the denial, he specified certain particulars in which the plaintiff had .failed to comply with his contract, he should be required to furnish the particulars of the instances specified. To entitle the plaintiff to recover under the contract, he must allege and prove that he performed the contract so far as it called upon him to perform it, and the defendant should not be required to specify his evidence by which he expects to disprove the plaintiff’s allegation of performance. For that purpose he will be entitled to use any evidence available, and should not be limited, which would be the effect of requiring hint to furnish the particulars asked for.

The order should be reversed, with ten dollars costs and disbursements, and- the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied,'with ten dollars costs.