Hague v. Northern Hotel Co.

77 Misc. 142, 135 N.Y.S. 1047

Opinion

Bijur, J.

The complaint alleges that the note, made to the order of the defendant, was 'duly indorsed by it and delivered to the plaintiff before maturity. As plaintiff need, prima facie, prove no more to entitle her to recover (see Neg. Inst. Law, § 50), no bill of particulars of other matter need be furnished. City of Rochester v. McDowell, 35 N. Y. St. Repr. 538; Matthews v. Hubbard, 47 N. Y. 428.

Defendant sets up as a separate defense that it, to the knowledge of plaintiff, received no consideration for the indorsement.

What defendant now seeks in his bill of particulars, is plaintiff’s evidence m rebuttal of the defense — a purpose altogether foreign to a bill of particulars. Smidt v. Bailey, 132 App. Div. 177; Smith v. Anderson, 126 id. 24; Barone v. O’Leary, 44 id. 418.

Order modified by excluding therefrom the items called for in paragraph 3 of the affidavit of George 0. Brown, and, as thus modified, affirmed, with ten dollars costs and disbursements to the appellant.

Seabury and Lehman, JJ., concur.

Order modified.