Dairymen's League Co-operative Ass'n v. Levy Dairy Co.

225 A.D. 475, 233 N.Y.S. 433, 1929 N.Y. App. Div. LEXIS 11671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1929
• Status: Published

Opinion

Per Curiam.

Defendants move for a bill of particulars, pursuant to the provisions of section 247 of the Civil Practice Act, of certain claims of the plaintiff. That motion has been denied in so far as it pertains to the cause of action based on goods sold and delivered.

Plaintiff has attached to and made a part of its verified complaint a schedule numbering and setting forth the items of its claim, and the reasonable value or agreed price of each, as provided by section 255-a of the Civil Practice Act (added by Laws of 1923, chap. 196, as amd. by Laws of 1927, chap. 248). It was, therefore, incumbent upon the defendants to specifically indicate in their answer the items, if any, which they dispute in respect to delivery, performance, reasonable value or agreed price. This the defendants failed to do. Their answer is a general denial. This is not sufficient to put in issue the items constituting plaintiff’s cause of action for goods sold or delivered. (Innis, Pearce & Co. v. Poppenberg, Inc., 213 App. Div. 789; International Milk Co. v. Cohen, 219 id. 308; appeal dismissed, 245 N. Y. 564; Sinram Bros., Inc., v. Naples Realty Co., Inc., 224 App. Div. 369.)

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Order affirmed, with ten dollars costs and disbursements.