United States Casualty Co. v. Jamieson , 107 N.Y.S. 490 ( 1907 )

McLaughlin, J.:

This action was brought to recover certain advances alleged to have been made by plaintiff to defendant in excess of commissions to which he and his sub-agents were entitled and also upon a separate cause of action for money loaned. After the action had been commenced, but before issue was joined-, the defendant moved for a bill of particulars. The affidavit upon which the motion was principally based was to the effect that the allegations of the complaint set forth in gross various sums of money in large amounts which had been advanced; that the defendant had' never been permitted to examine the books of the plaintiff or given a statement of the sums advanced; that he was unable to answer the complaint intelligently and with safety to his interest, and that he could not properly defend the action without a detailed statement. The plaintiff, in opposition, submitted affidavits to the effect that the plaintiff had advanced certain amounts of money each week to defendant and obtained receipts from him showing that the money was advanced on account of the commissions and that monthly statements were rendered to him.

A bill of particulars is not ordered, except under very extraordinary circumstances, prior to the joining of issue, and this for the obvious reason that a party has no necessity for a bill of particulars until he disputes the plaintiff's claim. Not a single fact is here stated which would justify the order. The defendant knows, or ought to know, whether or not he received the amounts alleged to have been paid him for. the time stated; he also knows, or ought to know, the commissions -earned by him as well as by his sub-agents." If he knows these facts then he is in a position to interpose an answer; if he has not the necessary information then he can interpose an answer denying that he has any knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint and this puts the plaintiff to its proof. (Code Civ. Proc. § 500.) Substantially all the defendant claims is that he does not know whether the plaintiff’s claim is correct or not, and a bill of particulars under such circumstances will not be ordered, certainly not before issue is joined. (Hicks v. Eggleston, 95 App. Div. 162 ; McClellan v. Duncombe, 26 id. 353 ; American Credit Indemnity Co. v. Bondy, 17 id. 328 ; Morrill v. Kazis, 8 id. 304.)

The order appealed from, therefore, must be reversed, with ten 'dollars cosis and disbursements, and the motion denied, with ten dollars costs.

Patterson,' P. J., Ingraham, Houghton and Soott, JJ., concurred.

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