Seely v. Breakwater Co. ( 1913 )

BIJUR, J.

This is an appeal from an order denying plaintiff’s motion for a bill of particulars of the defense of payment. “Ordinarily” particulars of such a defense will not be directed, apparently because it would not call for the particulars “of the claim of the party” as provided in section 531 of the Code of Civil Procedure, but of the evidence to sustain such claim. See Barone v. O’Leary, 44 App. Div. 418, 60 N. Y. Supp. 1131. It is true that there have been some decisions intimating that a bill of particulars of the defense of payment will never be ordered. No doubt, cases in which opinions to this effect have been rendered were properly decided on the facts there disclosed, and the opinions have merely stated the rule more broadly than was called for. There seems, however, to be no reason why, under circumstances like those disclosed in the case at bar, where plaintiff alleges, without contradiction, that the relations between defendant and himself have been numerous and diverse, and moneys have passed between them in these relations, respectively, particulars should not be furnished of the items which defendant claims constituted payment of plaintiff’s debt. Sittig v. Cohen, 130 App. Div. 689, 115 N. Y. Supp. 332.

Order reversed, with disbursements to appellant, and motion granted as to items 1 and 2 of plaintiff’s moving affidavit, being the dates and amounts of payments claimed.

S.EABURY, J., concurs.