Dunn v. Dunn

95 N.Y.S. 719 | N.Y. App. Div. | 1905

Ingraham J.:

The complaint alleges that, the plaintiff’s testator loaned and advanced various sums of money to the defendant, aggregating $3,000, which the defendant agreed to pay on demand, and that no part of said sum has been paid. The answer denies the allegations of the complaint, except the death of the plaintiff’s testator, and alleges that all claims of the plaintiff’s testator have been paid and that there had been an accounting and payment of the amount found due. The defendant, upon an affidavit alleging that he and plaintiff’s testator were brothers, and that the defendant had had numerous transactions with plaintiff’s testator, but was ignorant as to what particular transaction the plaintiff will seek upon the trial to prove, moved that the plaintiff be required to serve a bill of particulars as to the loan alleged in the complaint. This motion was granted.

I think the court Was justified in requiring th^'pjaintiff to serve a bill of particulars of her demand. - The defendSm is entitled to have the plaintiff specify the date of the loan and the amount. Assuming that the defendant has knowledge of the transactions between himself and the plaintiff’s testator, that fact would not bean answer to the defendant’s demand for a bill of particulars, for when there is a general allegation in the complaint of money loaned, a bill of particulars should be required'to specify the particularities of the claim so that the plaintiff will' be limited upon the trial and- to prevent surprise. It is apparent that from such a general allegation as is contained in this- complaint, the defendant would not be informed of the specific character of the plaintiff’s demand so as to be prepared to meet it at the trial.

The 2d clause in the order appealed - from ■ requires the plaintiff to specify the manner in which the money alleged to have been loaned was “ made,” whether by check, cash or. otherwise, with date.-and number of check, and the bank or other institution upon which the same was drawn. This required the plaintiff to give the evidence upon which she would support her cause of action, not the particulars of her claim, and it is not proper to require a party to disclose his evidence by a bill of particulars.

The order should, therefore, be modified by striking, out the 2d' clause of the order and as- modified affirmed; without costs of this appeal. _

O’Brien, P. J., Patterson, Lauíi-hlin and Clarke, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs, -