| N.Y. App. Div. | Jan 12, 1927
The complaint in this action states that the defendant, “ for a valuable consideration,” promised to pay plaintiff $5,000 upon the happening of a certain event. The defendant answered, denying all material allegations of the complaint. Then, upon demand, a bill of particulars was served by plaintiff. A motion was made by defendant for judgment on the pleadings and denied, resulting in this appeal.
The motion was made under rule 112 of the Rules of Civil Practice, and was timely. It challenges the complaint as not stating facts sufficient to constitute a cause of action, and might have been made as late as at time of trial. (Civ. Prac. Act, § 279.) Rule 106 of the Rules of Civil Practice has no application. (Koppel Ind. C. & E. Co. v. Portalis & Co., 205 A.D. 144" court="N.Y. App. Div." date_filed="1923-04-06" href="https://app.midpage.ai/document/koppel-industrial-car--equipment-co-v-portalis--co-5268978?utm_source=webapp" opinion_id="5268978">205 App. Div. 144; Klippel v. Weil, 204 id. 323.)
It is the rule in this State that, under facts and circumstances such as are here presented, a bill of particulars not only limits plaintiff’s proof at the trial (Pease Piano Co. v. Taylor, 197 A.D. 468" court="N.Y. App. Div." date_filed="1921-07-01" href="https://app.midpage.ai/document/pease-piano-co-v-taylor-5262068?utm_source=webapp" opinion_id="5262068">197 App. Div. 468; affd., 232 N.Y. 504" court="NY" date_filed="1921-10-25" href="https://app.midpage.ai/document/pease-piano-company-v--taylor-3592180?utm_source=webapp" opinion_id="3592180">232 N. Y. 504), but supplements and explains the complaint, and should be considered on a motion for judgment on the pleadings, and given full force and effect, to the same extent as on a motion for judgment at the trial. (Dineen v. May, 149 A.D. 469" court="N.Y. App. Div." date_filed="1912-03-08" href="https://app.midpage.ai/document/dineen-v-may-5223512?utm_source=webapp" opinion_id="5223512">149 App. Div. 469; Porter v. L. V. R. R. Co., 194 id. 139; Wilson & Co., Inc., v. Hartford Fire Ins. Co., 190 id. 506; affd., 229 N.Y. 612" court="NY" date_filed="1920-10-12" href="https://app.midpage.ai/document/wilson-co-incorporated-v--hartford-fire-ins-co-3608476?utm_source=webapp" opinion_id="3608476">229 N. Y. 612; Maxherman Co. v. Alper, 210 A.D. 389" court="N.Y. App. Div." date_filed="1924-10-31" href="https://app.midpage.ai/document/maxherman-co-v-alper-5275784?utm_source=webapp" opinion_id="5275784">210 App. Div. 389.)
The opinion in Harmon v. Peats Co. (243 N.Y. 473" court="NY" date_filed="1926-11-16" href="https://app.midpage.ai/document/harmon-v-alfred-peats-co-3633087?utm_source=webapp" opinion_id="3633087">243 N. Y. 473) does not change this general rule nor require an affirmance of the order appealed from. That opinion holds that a plaintiff’s bill of particulars, furnished after answer served, which fully discloses a state of facts (not pleaded in extenso in the complaint) such that the Statute of Frauds or the Statute of Limitations, if pleaded, might have been good defenses, does not render the complaint bad on a motion for judgment on the pleadings, when those statutes are not set up in the answer. In that particular case the complaint, as amplified by the bill of particulars, still stated a good cause of action as against a general denial; the statutes mentioned, not having been pleaded in defense, were waived (Civ. Prac. Act, § 242); and under such circumstances it was held that the bill of particulars did not make the good complaint bad, and did not improve the answer by adding to it in effect the statutory defenses omitted and waived. In the instant case, the answer, likewise served before the bill of particulars, raised the issue of consideration; and the bill of particulars not only illuminates the complaint, but limits the proof of consideration so effectually that plaintiff cannot'prove a cause of action, with the original answer in force. The complaint as served was technically sound; but the specifications as to consideration, furnished in the bill of particulars, make manifest the original and continuing weakness of plaintiff’s claim as controverted; and without either altering the scope of the answer or adding material allegations to the complaint, those specifications show the futility of plaintiff’s proceeding further under these pleadings.
We do not find any legal consideration for the appellant’s
All concur. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to plead over within twenty days, upon payment of the costs of the motion and of this appeal.