Etta F. Herrington, Respondent, v. Ida Akin Davitt and John W. Davitt, as Executors, etc., of Albert W. Davitt, Deceased, Appellants

Etta F. Herrington, Respondent, v. Ida Akin Davitt and John W. Davitt, as Executors, etc., of Albert W. Davitt, Deceased, Appellants. Third Department, March 5, 1913. Pleading — bill of particulars — allegations anticipating defense of Statute of Limitations. Where a complaint anticipating the defense of the Statute of Limitations in an action upon a promissory note alleges a new promise of the defendant to pay which is denied by the answer and that is the only issue, the defendants are entitled to a bill of particulars stating when and how the new promise was made and are also entitled to a copy of the promise if in writing. Appeal by the defendants, Ida Akin Davitt and another, as executors, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 12th day of November, 1912, denying the defendants’ motion for a bill of particulars. Thomas O’Connor, for the appellants. Holmes & Bryan [John B. Holmes of counsel], for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The action is to recover upon a promissory note and the complaint is in the usual form, with an added allegation that the maker “in his lifetime after the making of said note often promised and agreed to and with the plaintiff that he would pay the same. ” The answer admits the making of the note, but alleges the Statute of Limitations, discharge in bankruptcy, and a composition in bankruptcy in which the plaintiff participated, as the sole defenses. The new promise, therefore, is the real issue in the case, and is denied by the general clause of denial in the answer. It was unnecessary to allege the new promise in the complaint. The plaintiff very properly anticipated that she must rely upon such promise in order to recover. She having expressly tendered the issue, and it appearing that it is the only issue in the case, it seems proper that the defendants should be informed when and how the new promise was made, and if in writing furnished with a copy thereof. The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted requiring plaintiff to furnish a bill of particulars showing when the new promise was made, whether in writing or not, and if in writing a copy thereof. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, requiring the plaintiff to furnish a bill of particulars showing when the new promise was made, whether in writing or not, and if in writing a copy thereof.