Standard Materials Co. v. Thomas B. Bowne & Son Co. , 103 N.Y.S. 12 ( 1907 )

Clarke, J.:

The complaint alleges two causes of action, one for damages for wrongful refusal to accept certain bricks tendered under a contract of purchase and sale, and, second, for money laid out for the use and benefit of the defendant at its request. The defendant has not yet answered. The complaint sets up the contract in ipsissimis verbis, and alleges the acceptance of two deliveries thereunder and, upon certain specific dates, the refusal by the defendant to accept three other duly tendered deliveries.

In American Credit Indemnity Co. v. Bondy (17 App. Div. 328) this court held that where no answer had been served, amotion by the defendant for a bill of particulars, on the ground that it was necessary for his defense, must be denied, as it cannot be said that a defense will be made until an issue is raised by the service of an answer; and it was further held that such' an order would not be granted to enable the defendant to answer where he was wholly ignorant of the particulars of the plaintiff’s claim, inasmuch as the Code, of Civil Procedure (§ 500) permits him to deny any knowledge or information sufficient to form a belief as to the allegations of the complaint. That case was followed upon both points by the Appellate Division in the second department in Hicks v. Eggleston (95 App. Div. 162) and Schultz v. Rubsam (104 id. 20).

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and. the motion denied, with ten dollars costs.

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred.

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