M. J. Kraus & Co. v. Mayer

134 N.Y.S. 694 | N.Y. App. Div. | 1912

McLaughlin, J.:

The plaintiff loaned to Mayer, Guthorn & Kahn Company, a domestic corporation, the sum of $6,000 and, according to the allegations of the complaint, in order to induce it to make the loan, the defendants in this action guaranteed in writing the repayment of the same. The answer sets up, among other defenses, that the loan was made pursuant to the terms of a written agreement by which Mayer, Guthorn & Kahn Company, as collateral security for the payment of the same, transferred to the plaintiff the equities in certain accounts receivable, theretofore pledged with the plaintiff, and that the proceeds of such equities were sufficient to repay such loan. It also alleges, in another defense, that the plaintiff induced the defendants to execute the guaranty by representing to them that the equities in the assigned accounts amounted to $6,500, whereas they were, in fact, considerably less than that sum. After issue had been joined plaintiff moved for a bill of particulars as to certain matters set up in the answer, and among others (1) “ That the defendants furnish an itemized statement of the equities in the accounts receivable, which were pledged by the Mayer, Guthorn & Kahn Co. as security with the plaintiff, which equities it is alleged were sufficient to repay to the plaintiff the sum of $6,000;” and (2) “That the defendants furnish' an itemized statement of the equities in the outstanding accounts which the Mayer, Guthorn & Kahn Co. pledged with the plaintiff, which * * * were in an amount considerably less than said sum.” The motion was granted and defendants appeal from that portion of the order above quoted.

It is claimed, inasmuch as the defenses are inconsistent, the plaintiff is entitled, by a bill of particulars, to ascertain the one upon which the defendants will rely at the trial. This is not the office of a hill of particulars. Its purpose is to amplify or restrict the pleading not only for the purpose of shortening or preventing surprises at the trial, hut also to enable one to intelligently prepare for trial. (Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319; Dudley v. New York Filter Manufacturing Co., 80 id. 164.) If a pleading is indefinite or ' uncertain the remedy is not by bill of particulars, but by motion to make definite and certain, by amendment. (Code Oiv. Proc. § 546; Kerr v. Hays, 35 N. Y. 331.) A defendant may set forth in his answer as many defenses as he believes he has (Code Civ. Proc. § 507), and if those set forth are inconsistent then the court has the- power, either prior to or at the trial, upon a motion made for that purpose, to: compel an election upon which one he will rely. (Tuthill v. Skidmore, 124 N. Y. 148; Southworth v. Bennett, 58 id. 659.)

So much of the order as appealed from, therefore, is reversed, with ten dollars costs and disbursements,, and the motion to that extent denied, without costs.

• Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and'motion denied-to extent stated in opinion, without costs. Order to be settled on notice.