40 N.Y.S. 954 | N.Y. App. Div. | 1896
The only ground upon which the bill of particulars was applied for was that it was necessary to enable the defendant to answer. It was not necessary for that purpose. The action is for a breach of a contract to take and pay for certain cigai’ettes sold by the plaintiff to the defendant and one Timayenis under a written contract. The plaintiff alleges the making of the contract in writing and that under it the plaintiff sold to the defendant, and the defendant purchased and promised to pay for, all the right, title and interest of the
The order appealed from required the plaintiff to furnish a bill of particulars stating as to the cigarettes sued for the number of each brand manufactured and on hand August 15, 1895, and the name and address of the purchaser returning any cigarettes sued for, the date of their purchase and return, and the number of each brand returned by said several purchasers severally. This order was made upon an affidavit in which the moving party stated that he had no
It seems to be obvious that the only purpose of making an application of this kind was to enable the defendant to get from the plaintiff the evidence intended to be used on the trial. That such is not the office of a bill of particulars it is unnecessary to argue. In Hayes v. St. Mary’s Lodging House (89 Hun, 27); Bender v. Bender (88 id. 449), and in Newell v. Butler (38 id. 104) that practice was condemned. It was not necessary in any way to en&ble the defendant to answer the complaint, that he should have the information sought to be obtained. It was entirely competent for the defendant to answer, denying upon information and belief either of the matters upon which the plaintiff’s cause of action was based. 'The purpose of an answer is to raise an issue;' and to say that the defendant, in order to raise an issue, must be informed by the plaintiff of all the evidence that he has to support each and every particular item .of what apparently would constitute a long account, is an absurdity. The Code of Civil Procedure expressly provides the form -in which an answer may be made, where the party does not possess the information to enable him positively to contradict an .averment of the complaint.
The order appealed from should be reversed, with ten dollars ■costs and disbursements, and motion denied, with ten dollars costs.
Present — Babbett, Rumsey, Pattebson and Ingbaham, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.