Keyes v. George C. Flint Co., 74 N.Y.S. 483

74 N.Y.S. 483 | N.Y. App. Div. | 1902

Laughlin, J.:

This action is brought for an accounting on a contract by' which defendant employed plaintiff to manage its shipping department on a guaranteed weekly salary and a percentage of the net profits and for the recovery of the balance found due to plaintiff on such accounting. The complaint charges that defendant’s books do not correctly show the account and that false entries of credits to plains tiff and of the net profits have been made therein. The principal material allegations of the complaint are denied. The answer, for a fourth defense and counterclaim, repeats the allegations of the second defense to the effect that from time to time during the period of plaintiff’s employment by defendant it rendered and delivered to him full and true statements in writing, showing the true condition of his accounts as they appear upon the books of the defendant and that the same were accepted by the plaintiff as correct and true. And it alleges that an account was stated between the parties on or about the 30th day of June, 1901, and the sum of $1,529.19 was found to be due thereunder by the plaintiff to the defendant, no part of which has been paid, and for which, with interest, the defendant demands judgment. The plaintiff, by reply, denies the allegations constituting the counterclaim.

The plaintiff’s attorney in due time duly demanded verified items of “ all the accounts alleged in the answer and counterclaim,” and a verified bill of particulars of the counterclaim “ which shall contain a detailed statement thereof including the information demanded in the following paragraphs.” Here followed fourteen separate paragraphs calling for specific information as to the accounts and claims set up in the answer.

Paragraph 11 specifically calls for the items of the accounts alleged to have been stated from time to time, and paragraph 14 specifically calls for the items of the account alleged to have been stated on or about the 30th day of June, 1901, and which constitutes the counterclaim for which an affirmative judgment is demanded.

■We are of the opinion that the plaintiff was entitled to a copy of the alleged account stated and of the items thereof upon which the defendant’s counterclaim is based. The allegations of the answer are to the effect that the accounts rendered from time to time, which it is claimed constitute its accounts, were “ full and true statements in writing showing the true condition ” of plaintiff’s accounts, and that on the account stated on June 30, 1901, the “ sum of $1,529.19 was. found to be due thereon by the said plaintiff to the said defendant.” It is to be inferred from these allegations that the account stated contains items.

It thus appears that plaintiff not only denies that any account was. stated, but he questions the accuracy of the defendant’s books of account. In these circumstances it is important to him to have a. copy of the account stated which, if established as such, may only be impeached for fraud or mistake.

•An account stated which contains items falls within the provisions of section 531 of the Code of Civil Procedure, which entitles the-adverse party to a verified copy thereof. (Sanchez v. Dickinson, 47 N. Y. St. Repr. 203; Wells v. Van Aken, 39 Hun, 315; Cunard v. Francklyn, 15 Civ. Proc. Rep. 134.)

The motion for a bill of particulars of the other agreements setup in the answer and of the names of the parties with whom it is-claimed that plaintiff made the same was properly denied. Where an action is based upon an agreement alleged to have been made-with a corporation, and the corporation denies the making of the-agreement and any knowledge concerning the same, a bill of particulars, stating with what officer or agent the contract was made- and the substance of the contract, may be required of the adverse, party. (Fruin-Bambrick Construction Co. v. Marks, 48 App. Div. 51.) In such case it is necessary for the corporation to have this-information in order to enable it to be prepared to show that the-alleged officer or agent acted without authority. This necessity, however, does not exist where it is claimed that a contract was-made with an individual in his own right. The plaintiff, therefore,, was not entitled to a bill of particulars concerning the agreement alleged in the answer to have been made between him and certain stockholders of the defendant authorized to represent it.

The order should be reversed, with ten dollars costs and disbursements, and motion to preclude defendant from giving evidence of the alleged account stated constituting its counterclaim granted, with ten dollars costs, unless the defendant serves a copy thereof upon the plaintiff’s attorney within ten days from the service of the ■Order entered on this appeal. .

Van Brunt, P. J.,. Patterson, Ingraham and Hatch, JJ., ■concurred.

Order reversed, with ten dollars costs and disbursements, and motion to preclude defendant from giving evidence of alleged account stated granted, with ten dollars costs, unless defendant .serves a copy thereof on plaintiff’s attorney within ten days of .service of order entered oil this appeal.