8 How. Pr. 329 | N.Y. Sup. Ct. | 1853
It is required of all parties pleading under the Code that they should set forth, with intelligible certainty and particularity, the facts upon which, at the trial, they will rely, to establish a cause of action or defence. When, however, the cause of action or matter of defence consists of an account, the particularity of statement required in other cases, is in the first instance dispensed with, and the pleader is allowed to allege his cause of action or ground of defence in general terms. But, when a party avails himself of this mode of pleading, he may subsequently be required to furnish to his adversary “ the items of his account.” His omission to do this, when required, renders his pleading unavailable upon the trial. If, when thus required to furnish the items of his account, he attempts to do so, but the account furnished is, for any reason defective, an order may be made requiring a “ further account” to be delivered. This practice has been pursued in this case. An order for a further account has been made, and a further account has been delivered, which further account, it is insisted, is also defective. This is, undoubtedly, so. The defendant having set up, by way of defence, an account against the plaintiff, was bound, when called upon for that purpose, to specify the several items, stating with all practicable particularity, the date and amount and general character of each item, as she intended to have it allowed at the trial. The account, like the answer, should state the facts which the defendant proposes to establish by proof, if controverted. Tested by these principles, it is obvious that the account furnished by the defendant is insufficient. She would be required to prove more than she has
But while the account is defective, I think the order requiring such further account is also defective. The defendant having, upon the demand of the plaintiff, furnished an account which, upon the application for the order, was adjudged to be defective, the points in respect to which a further specification was required should have appeared in the order. This was the former practice when a further bill of particulars was required, and it is equally important now. (Graham's Pr. 2d ed., 518.) Humphrey agt. Cottleyou, (4 Cowen, 54,) Stanley agt. Millard, (4 Hill, 50.)
Whether, in case of the failure of the party to comply with an order for a further account, either by delivering an insufficient account, or omitting to deliver any account at all, an application should be made, upon motion, to preclude such party from giving evidence of the account claimed in the answer, or whether the objection should be taken at the trial, is, perhaps, not very well settled. The more convenient practice undoubtedly is, to have the question settled before the trial. Where an effort had been made to comply with an order for a further account, it might operate as a surprise upon the party, to meet an objection to the sufficiency of his account, for the first time at the trial. In such cases, at least, and I am inclined to think, in all cases, it would be the better practice for the party who intends to preclude his adversary from proving an account, on the ground that he has not complied with a demand or an order for the particulars of such account, to apply for an order to that effect, before the trial. (Graham’s Pr. 519.)
In this case, however, the defendant must have an opportunity to furnish a further account, before she can thus be precluded. An order must therefore be entered requiring her to furnish such further account, specifying therein, the particular items upon which she will rely upon the trial, with the dates ■and amounts of such items. And, as it is suggested that some of the papers necessary to enable the defendant to give such specific account, are in the possession or under the control of