Hawes v. Foote

9 Misc. 203, 29 N.Y.S. 680, 60 N.Y. St. Rep. 837

Opinion

Newburger, J.

This action is brought to recover under an alleged special agreement whereby defendant was to pay plaintiff ten per cent of the amount of all moneys received by her under certain life insurance policies issued in her favor.

Ho answer has as yet been interposed.

An order was entered herein requiring plaintiff to furnish the defendant with a bill of particulars of the services rendered by the plaintiff, and from such order this appeal has been taken.

This action is on a contract to recover ten per cent, and not on a quantum meruit.

The defendant ought to know whether she made a contract ' to pay the plaintiff ten per cent on all moneys collected by her on insurance and how much she collected on such policies.

The facts are peculiarly within the knowledge of the defendant, and plaintiff ought not to be required to furnish a bill of ,-par.ticulars.

The order appealed from must be reversed, with costs.

Oonlan, J., concurs.

Order reversed, with costs.