Chrysler v. James

By the Court, Bronson, J.

K the plaintiff had served a bill of particulars with the original declaration, he would, perhaps, have been authorized to amend of course under the 23d rule by simply changing the form of the particulars. Although the rule only provides for amendments of the pleadings, yet, for most purposes, the particulars are regarded as an amplification of the pleading to which they relate, and are construed as though they formed a part of it. (Starkweather v. Kittle, 17 Wendell, 20.) But it is not necessary to decide that question. In this case the plaintiff did not, in the first instance, serve a bill of particulars. He only gave such a notice and copy of notes as would authorize him to give the instruments in evidence under the money counts, pursuant to. the act of 1832, without restricting his claim to those demands. It was not a bill of particulars, either in terms or in legal effect. His subsequent amendment was nothing more than delivering a bill for the first time; and that was not within the rule authorizing an amendment of the declaration as of course. The plaintiff may, no doubt, voluntarily deliver the particulars of his demand after the service of the declaration, for the purpose of avoiding the delay incident to an order for a bill obtained by the defendant. But he cannot in that way impose on the defendant the necessity of pleading anew, and verifying his plea under the first rule of May term, 1840. '

Motion granted.