Dacey v. Fogel

144 A.D. 160, 128 N.Y.S. 750, 1911 N.Y. App. Div. LEXIS 1648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1911
• Status: Published

Opinion

Miller, J.:

The defendant- in this action moved for a substitution of attorneys. The appellant asserted a lien upon the papers. in his possession for services rendered in this action and in other matters. As a condition of the substitution and the delivery of the papers in the appellant’s possession, the court ordered a reference to determine the amount of the appellant’s claim for services. Before the hearing the motion resulting in the order appealed from was made.

The office of a bill of particulars is to amplify a pleading. The respondent has already been apprised of the general nature of the appellant’s claim. The appellant will have to prove, before the referee, the services rendered and their value. The respondent will have an opportunity to cross-examine him, and, after his claim has been fully disclosed, will, of course, be granted any reasonable- adjournment necessary to meet it.Under such circumstances we can see none but an ulterior purpose to be served by. requiring a bill of particulars. (See Mellen v. Mellen, 17 N. Y. Supp. 866.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.'

V

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. '

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.