Edward O. Kindberg, Respondent, v. Robert R. Chapman, Appellant

Edward O. Kindberg, Respondent, v. Robert R. Chapman, Appellant. (No. 1.) First Department, October 12, 1906. Bill of particulars — further particulars denied when party unable to make more detailed statement. When a bill of particulars of a counterclaim for moneys advanced for the plaintiff states that the defendant expended on plaintiff’s account ten dollars per week for 141 weeks between certain specified dates for theatre tickets, meals, etc., and also two dollars per week for trips and excursions during four months of each year for five years, and is unable to furnish a more detailed statement because no such statement was kept, a motion for further particulars should be denied. Under the circumstances, the disbursements, if made, are as much within the knowledge of the plaintiff as of the defendant. Appeal by the defendant, Robert R. Chapman, from 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 19th day of June, 1906, as resettled by an order entered in said clerk’s office on the 25th day of June, 1906, directing the defendant to give a further bill of particulars in respect to certain items in his counterclaim. Theodore T. Baylor, for the appellant. August Reymert, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: In view of the affidavit of the defendant I do not think that this order should be sustained. The bilb of particulars served specified as one. of the items for which defendant asked a. judgment that " between October 30/1897, and June 16, 1900, 141 weeks, the ■defendant expended on account of the plaintiff ten dollars a week for theatres, meals, etc.,, and as another item he expended for plaintiff for trips and excursions, two per week, during four months ' each year for five seasons about $1,400. He alleges in his affidavit in opposition to the motion that these were.running disbursements for railroad fares and at theatres and hotels; that no itemized account of the disbursements- was ever kept and defendant is unable to furnish a detailed statement of the amount included in those'items, and on account of the circumstance under which these disbursements were made it is impossible for him to specify them more particularly than he has in the bill of particulars furnished. If the defendant is required to'give these particulars it would result in defeating his claim for reimbursement. ■ There Was no. affidavit submitted by the plaintiff which -denies that the defendant actually advanced money for the purposes mentioned, except the reply tó the counterclaim, and'if such advances were actually made the plaintiff must have as much information about them as the defendant. I think that the bill of particulars furnished, containing all the information that the .defendant could give, was sufficient,- and con-1 sequently the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a further bill of. particulars denied. 1 ■ O’Brién, P. J., Olarke, Houghton and Scott, JJ., concurred. Order reversed, With ten dollars costs and disbursements,, and. motion denied. Order filed.