Jacob Bros. v. Kunitzer ( 1909 )

PER CURIAM.

Although the learned justice below was evidently mistaken as to the facts, we agree in the result; A remedy, in the alternative, to make a pleading more definite and certain or for a bill of particulars, is never looked upon with favor by the court. It has been held “that this practice should be discouraged, if not condemned.” Kavanaugh v. Commonwealth T. Co., 45 Misc. Rep. 201, 203, 91 N. Y. Supp. 967. Were such not the case, it does not appear that paragraphs 5 and 7 of the defendant’s answer “are so indefinite or uncertain that the precise meaning or application thereof is not apparent.” Code Civ. Proc. § 546.

Being placed in an awkward position by his .selling agent’s bankruptcy, plaintiff then seeks a disclosure of the nature of the proof by which his adversary will establish his defense of payment, by means of a bill of particulars. A defendant is not required to furnish a bill of particulars of payments made, under the defense of payment. Heilperin v. Levy, 116 N. Y. Supp. 676, per Erlanger, J.; Barone v. O’Leary, 44 App. Div. 418, 60 N. Y. Supp. 1131; Swan v. Swan, 44 Misc. Rep. 163, 89 N. Y. Supp. 794.

The order must be affirmed, with $10 costs and disbursements.