1 Barb. 30 | N.Y. Sup. Ct. | 1847
This is a case in which an adherence to mere technicality may prejudice the merits. The plaintiff brings his suit against the defendant for certain moneys and securities which the defendant has received for him, but which he refuses to render any account of, or to pay over. And the defendant, by asking for a bill of particulars, seeks to tie the plaintiff down in such a manner that if he makes a mistake, he may be turned out of court. This was manifest to the commissioner; and it was also shown to him that the plaintiff could not give a bill of particulars, with any safety, until the defendant should make a discovery of that which was peculiarly within his knowledge; that is, what moneys and securities of the plaintiff 'he had received. Under such' circumstances, the defendant ought not to have been allowed to ask for particulars until he had made a discov
The order for a bill of particulars must be set aside; without prejudice however to the defendant’s right to apply for a new order for particulars, and proceeding to judgment thereon, unless the plaintiff, within twenty days, shall institute proceedings to obtain a discovery, and prosecute the same to a termination, with all due diligence.