Auerbach v. Pellman

Appellate Terms of the Supreme Court of New York

Auerbach v. Pellman

125 N.Y.S. 782

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 17, 1910

StatusPublished

This text of 125 N.Y.S. 782 (Auerbach v. Pellman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Auerbach v. Pellman, 125 N.Y.S. 782 (N.Y. Ct. App. 1910).

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Opinion

PER CURIAM.

This is an appeal from an order denying defendant’s motion for a bill of particulars. Plaintiff sued on two causes of action: First, for moneys alleged to have been paid out and expended for defendant by plaintiff upon the promise and agreement of the defendant to repay the same to plaintiff; second, on a check given in 'repayment of said moneys, which check was presented where payable, and payment refused. The defense is a general denial; and for a further and separate defense defendant alleges: First, that the check referred to in the complaint was given in a gambling transaction, and is void; second, that the check was delivered in blank, and intended to be given for $200, and not for $400.

Defendant demanded a bill of particulars as to “the time (day and hour) when and the place where defendant requested the plaintiff to expend the moneys as set forth in the complaint, to whom the moneys were paid, for what purpose the moneys were paid, if the moneys were paid in one lump sum or in small amounts aggregating $400, the time (day and hour) when and the place where defendant promised to repay the $400, and the nature and consideration of the indebtedness from the defendant to plaintiff.” The defendant having, in his answer, alleged “the nature and consideration of the indebtedness from the defendant to plaintiff,” showing full knowledge on his part of the facts and circumstances connected with the alleged payment and promise of reimbursement upon which plaintiff relies, he is not entitled to a bill of particulars in that regard. As to all other matters covered by the demand for the bill of particulars, the motion should have been granted. Tilton v. Beecher, 59 N. Y. 184, 17 Am. Rep. 337; Harris v. Drucklieb, 128 App. Div. 276, 112 N. Y. Supp. 671.

The order should therefore be reversed, with $10 costs and disbursements.

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PER CURIAM.

This is an appeal from an order denying defendant’s motion for a bill of particulars. Plaintiff sued on two causes of action: First, for moneys alleged to have been paid out and expended for defendant by plaintiff upon the promise and agreement of the defendant to repay the same to plaintiff; second, on a check given in 'repayment of said moneys, which check was presented where payable, and payment refused. The defense is a general denial; and for a further and separate defense defendant alleges: First, that the check referred to in the complaint was given in a gambling transaction, and is void; second, that the check was delivered in blank, and intended to be given for $200, and not for $400.

Defendant demanded a bill of particulars as to “the time (day and hour) when and the place where defendant requested the plaintiff to expend the moneys as set forth in the complaint, to whom the moneys were paid, for what purpose the moneys were paid, if the moneys were paid in one lump sum or in small amounts aggregating $400, the time (day and hour) when and the place where defendant promised to repay the $400, and the nature and consideration of the indebtedness from the defendant to plaintiff.” The defendant having, in his answer, alleged “the nature and consideration of the indebtedness from the defendant to plaintiff,” showing full knowledge on his part of the facts and circumstances connected with the alleged payment and promise of reimbursement upon which plaintiff relies, he is not entitled to a bill of particulars in that regard. As to all other matters covered by the demand for the bill of particulars, the motion should have been granted. Tilton v. Beecher, 59 N. Y. 184, 17 Am. Rep. 337; Harris v. Drucklieb, 128 App. Div. 276, 112 N. Y. Supp. 671.

The order should therefore be reversed, with $10 costs and disbursements.

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Bluebook (online)

125 N.Y.S. 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auerbach-v-pellman-nyappterm-1910.

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