Edward C. Beirne, Appellant, v. William H. Sanderson, Respondent

Edward C. Beirne, Appellant, v. William H. Sanderson, Respondent. Bill of particulars of a claim for money paid out and loaned — a receipt and statement of amount due, signed by the defendant, is not a bill of particulars. The complaint in an action alleged that on January 25, 1899, the defendant was indebted on account to the plaintiff, for moneys paid out and loaned to the defendant, in the sum of §189; that the defendant had not paid any portion of such sum and that the same was still owing the plaintiff with interest. The defendant, acting pursuant to section 531 of the Code of Civil Procedure, demanded a copy of the account. In response to such demand the plaintiff served the following paper: “ The plaintiff herein states the following as the bill of particulars to his cause of action herein. “ ‘Port Jervis, Jan. 25th, 1889. “ ‘Received of Edward C. Beirne, Forty Dollars out of pay for December, '88, of §90.00 drawn this day from paymaster by E. C. Beirne, the balance of $50.00 is credited to my account, leaving due him now §189.00. “ ‘W. H. SANDERSON.’ “W. F. O’NEILL, “ Plaintiff’s Attorney." Meld, that the paper served was in no sense an account or bill of particulars and that the defendant was entitled, under section 581 of the Code of Civil Procedure, to a further account or bill of particulars. Appeal by the plaintiff, Edward C. Beirne, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 23 d day of March, 1903, directing the plaintiff to furnish a bill of particulars. W. T. Shaw, for the appellant. Joseph Rosch, Jr., for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The complaint in this action alleges that on the 25th day of January, 1889, the defendant was indebted on account to the plaintiff for moneys paid out and loaned to the defendant in the sum of $189; that the defendant has not paid any portion of said sum, and that the same is still owing the plaintiff, with interest. The answer contains a general denial and a plea of payment. Section 531 of the Code, of Civil Procedure provides that where a party does not set forth, in a verified pleading, the items of an account therein alleged, he. must deliver to the adverse party, withip ten days after a written demand thereof, a verified copy of the account. “ The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective.” In accordance with the provisions of this section, defendant’s, attorney demanded an account from the plaintiff. In response to. such demand the defendant furnished this paper: “ The plaintiff herein states the following as the bill of particulars to his cause of action herein. “ ‘ Port Jervis, Jan. 25th, 1889. “ ‘Received of Edward C. Beirne, Forty Dollars out of pay for December, ’88, of $90.00 drawn this day from paymaster by E. C. Beirne, the balance of $50.00 is credited to my account, leaving due him now $189.00. “‘W. H. SANDERSON.’ “ W. F. O’NEILL, . Plaintiff’’s Attorney.” Thereupon the defendant moved, under section 531, for a further account or bill of particulars, and the court made the order from which the present appeal is taken. That order was clearly right. The paper served in response to the defendant’s demand was in no sense an account or bill of particulars, but apparently nothing more than a copy of a receipt alleged to have been given to the plaintiff by the defendant. At most it was an evidence of indebtedness Which could be used upon the trial, but failed to disclose distinctly what was the claim of the plaintiff as to any of the items of the -account save the ninety dollars therein mentioned. The order should be affirmed. Woodward, TIirsohberg and Hooker, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.