William M. Watson and Others, Copartners, Doing Business under the Firm Name and Style of Watson & Youell, Appellants, v. Universal Transportation Company, Inc., Respondent

William M. Watson and Others, Copartners, Doing Business under the Firm Name and Style of Watson & Youell, Appellants, v. Universal Transportation Company, Inc., Respondent. First Department, December 3, 1920. Pleadings — action on promissory note — bill of particulars as to consideration — answer not raising issue of consideration. In an action on a promissory note in which the answer does not allege affirmatively that the instrument was without consideration, the defendant is not entitled to a bill of particulars as to the consideration. Appeal by the plaintiffs, William M. Watson and others, copartners, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of August; 1920, as requires the plaintiffs to give a bill of particulars of the consideration of a negotiable instrument upon which the plaintiffs sue. Carroll G. Walter of counsel [Patterson, Eagle, Greenough & Day, attorneys], for the appellants. Lawrence E. Brown of counsel [Bullowa & Bullowa, attorneys], for the respondent, [MAJORITY — Pee Ctjeiam :] Pee Ctjeiam : So much of this order as granted to the defendant the right to a bill of particulars from the plaintiffs of the consideration of the instrument sued upon must be reversed for the reason that the consideration of the instrument is not made an issue by the pleadings. Where the action is upon a negotiable instrument, in order to raise the issue of want of consideration the defendant must allege affirmatively that the instrument was without consideration. (See Abrahamson v. Steele, 176 App. Div. 865.) Not being able to question the consideration the defendant is not entitled to a bill of particulars in respect thereof. The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion denied. Present — Claeke, P. J., Dowling, Smith, Page and Geeenbaum, JJ. Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and motion for bill of particulars of consideration denied.