Willard F. Main and Others, Respondents, v. Mary Pender, Appellant

Willard F. Main and Others, Respondents, v. Mary Pender, Appellant. Action in tort — service of a demand for a bill of particulars — when improper — when the demand will be stricken out on motion. "Where the complaint in an action sets up a cause of action in tort to recover damages resulting from the act of the defendant in signing, without authority, her husband’s name to an order for a quantity of jewelry, the defendant is not entitled, under section 531 of the Code of Civil Procedure, to serve upon the plaintiffs’ attorney a written demand for a bill of particulars, but he may, under that section of the Code,-apply to the court for an order directing the plaintiffs to deliver to him a bill of particulars. If, however, the defendant’s attorney does serve upon the plaintiffs’, attorney a written demand for a bill of particulars, the plaintiffs’ attorney may properly make a motion to strike out or nullify the demand, in order to relieve himself from the necessity of determining, at his peril, whether or not the case was one in which a demand for a bill of particulars was proper. Arpead by the defendant, Mary Pender, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Washington on the 13th day of August, 1903, directing that defendant’s demand for a bill of particulars be stricken from the case. A. D. Arnold, for the appellant. Erskine C. Rogers, for the respondents. [MAJORITY — Chester, J.:] Chester, J.: The order appéaled from is one striking out defendant’s demand for a bill of particulars of various items of damages alleged in the complaint, with costs. The complaint alleges a cause of action for damages for an unauthorized signing by the defendant of her husband’s name to an order'for a quantity of jewelry. The action sounds in tort and is not on a contract alleging an account. The case is not one where the defendant had a right, under section 531 of the Code of Civil Procedure, to demand from the plaintiffs a copy of the items of the account alleged in the complaint, for there was no such account alleged, but it was a case where the defendant might properly have applied to the court under that section for an order directing the plaintiffs to deliver a bill of the particulars of the plaintiffs’ claim to the defendant. Instead of so applying, the defendant’s attorney served upon the plaintiffs’ attorney a written demand for a bill of particulars. Plaintiffs’ attorney immediately thereafter made a motion to strike such demand from the case on the ground that it was improper. The motion was heard and decided within ten days after service of the demand. From an order granting the motion this appeal is taken. If such demand had been a proper one, failure to comply therewith within ten days might have subjected the plaintiffs to an order precluding them from giving evidence on the trial of the matters demanded. If the motion had not been made and decided within ten days, plaintiffs’ attorney would have been at the hazard of determining for his clients whether it was a proper one which should be complied with, or whether it was improper and one which could safely. be disregarded. In this ease there would not seem to be much, if any, doubt that under this complaint a demand was not proper, yet lawyers and possibly courts might differ upon that question. That being so, it seems to me that the plaintiffs’ attorney was correct in his practice in making the motion to strike out or to nullify the demand so as to have the question as to its propriety determined by the court before his ten days for complying, if it should be held to be- a proper one, expired. . It is no more reasonable to require him to determine the question as to the propriety of the demand than to subject the attorney who makes an improper demand to the hazard of having such demand stricken out or nullified with costs. The order appealed from was, therefore, right and was the practice sanctioned in the somewhat similar case of Dowdney v. Volkening (37 N. Y. Super. Ct. 313), where an order denying a motion to strike out a demand for a bill of particulars was reversed. The case of Barkley v. Rensselaer & Saratoga R. R. Co. (27 Hun, 515) is not an authority against the conclusion here reached.There a demand had been made for the items of an account, where an account had been alleged in the complaint, and the court reversed an order setting aside such demand, which is quite a different case, from that presented’here. ’ The order should be affirmed, with ten dollars costs and disbursements. . All concurred; Houghton, J., not sitting. Order affirmed, with ten dollars costs and disbursements.