Diossy v. Rust

14 Jones & S. 374

• Court: The Superior Court of New York City
• Decided: November 22, 1880
• Status: Published

Opinion

By the Court.— Horace Russell, J.

This appeal is prosecuted on the theory that, because the answer alleges a release, it cannot be material to inquire into the previous transactions between the defendant and the plaintiff’s assignor, and, therefore, no bill of particulars was necessary or proper. This theory might be very well if a general release were the only defense set up by the answer (Fullerton v. Gaylor, 7 Robt. 551; Powers v. Hughes, 39 Super. Ct. 487; Watts v. Watts, 2 Robt. 685; Gee y. Chase Mfg Co., 12 Hun, 630; Drake v. Thayer, 5 Robt. 701).

But it is not the only defense. The answer here sets up other defenses, which are very general and indefinite. As to them a bill of particulars was properly ordered (Beecher v. Tilton, 59 N. Y. 176, and cases above cited).

The order is affirmed, with $10 costs, and disbursements.

Speir, J., .concurred.