Wilson & Baillie Manufacturing Co. v. Dumary

125 N.Y.S. 803 | N.Y. App. Div. | 1910

Houghton, J.:

The action is for money loaned to and expended by the plaintiff for the defendant. Annexed to ' the complaint and made a part of it is a full debit and credit account of the transactions had between the parties upon which the plaintiff bases its cause of action.

On motion of the defendant the court required the plaintiff to furnish a bill of particulars of the time when the amount claimed by plaintiff was advanced to the defendant, and the place where, and whether paid in cash or by check, and also who was present when the loan was made, and whether the defendant delivered any collateral security for the same,

It was improper to compel the plaintiff to furnish a bill of particulars of the persons present at the time when the transactions between the parties were had. It is not the office of a bill o'f particulars to furnish a list of the witnesses of the adverse party.

The plaintiff having made the account out of which it claims the indebtedness of the defendant accrued a part of its complaint, and having set forth fully therein all the transactions claimed to have been had between the parties, no further bill of particulars should have been required. Section 531 of the Code of Civil Procedure provides that, an account need not be set forth in a pleading unless the party so chooses, and that if the account upon which the cause of action rests is not - set forth the opposite party is entitled "to a bill of particulars. Where the account is fully set forth there is no occasion for any further bill of particulars, because the opposite party is furnished with all the items in controversy. (Seed v. Fairchild, No. 1, 83 App. Div. 629.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred. ' ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.