Ebin v. Equitable Life Assurance Society of United States, 177 A.D. 458

Ebin v. Equitable Life Assurance Society of United States

177 A.D. 458 | N.Y. App. Div. | 1917

Scott, J.:

The plaintiff alleges that for a term of years after April 17, 1896, he was an agent of defendant for the purpose of soliciting insurance under a contract which is annexed to the complaint.

*459He then sets forth eighty-five causes of action for commissions on policies which he claims to have placed, and on which, as he says, he has not been paid commissions. He also alleges that on September 15, 1910, the defendant delivered to him a statement of his claims for commissions on forty accounts for policies procured by him, the commissions on which have never been paid. He also states an eighty-seventh cause of action for $571.26 alleged to have been paid out for defendant and never repaid. He demands judgment altogether for $8,691.86.

The answer contains,

First. A general denial with some specific admissions.

Second. A plea of payment of all the commissions earned by plaintiff.

Third. An accord and satisfaction on August 17, 1904, by the payment of $528.30 at plaintiff’s request to the Corn Exchange Bank for plaintiff’s account.

The order appealed- from requires defendant to state, with the utmost particularity, all of the details concerning each payment to the plaintiff, thus in effect requiring defendant to state its account with plaintiff.

This is contrary to the practice in this department. It has been our rule not to require a defendant to give particulars of a defense of payment, unless very special reasons appear why such an order should he made.

The Special Term relied upon Sittig v. Cohen (130 App. Div. 689). In that case the plea was that payment had been made to a corporation; and a bill of particulars was ordered showing to what officer the payment was made.

In this case the exact reverse appears. The alleged payments are made to an individual, and the reason for the rule in Sittig v. Cohen disappears.

At to the accord and satisfaction we think that the allegations of the answer are sufficiently precise, and that to order particulars would amount to requiring defendant to disclose its evidence.

Furthermore, there is no affidavit of merits which seems to he required by rule 23 of the General Rules of Practice, since the motion is addressed to the discretion of the court.

*460The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Smith and Davis, JJ., concurred.

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