Payne v. Smith

New York Supreme Court

Payne v. Smith

19 Wend. 121

DecidedJune 15, 1838

StatusPublished

This text of 19 Wend. 121 (Payne v. Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Payne v. Smith, 19 Wend. 121 (N.Y. Super. Ct. 1838).

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Opinion

By the Court,

Bronson, J.

A bill of particulars was served with the declaration, and although it was furnished without any order for that purpose, the plaintiff was bound by it. Williams v. Allen, 7 Cowen, 316. If the defendants thought it insufficient, they should have applied for a further bill, or a more particular account of the demand for which the action was brought. The order for a bill of particulars, when one had already been delivered, was properly treated as a nullity. The particulars delivered were sufficiently specific, and the order was probably obtained from the commissioner without disclosing to him the true state of the case, and for the purpose of throwing the plaintiff over the Seneca circuit. But there is an affidavit of merits, and on that ground the defendants will be allowed to plead on payment of costs and consenting that the venue be changed to the county of Cayuga, which will enable the plaintiff to obtain a speedy trial.

Rule accordingly.

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By the Court,

Bronson, J.

A bill of particulars was served with the declaration, and although it was furnished without any order for that purpose, the plaintiff was bound by it. Williams v. Allen, 7 Cowen, 316. If the defendants thought it insufficient, they should have applied for a further bill, or a more particular account of the demand for which the action was brought. The order for a bill of particulars, when one had already been delivered, was properly treated as a nullity. The particulars delivered were sufficiently specific, and the order was probably obtained from the commissioner without disclosing to him the true state of the case, and for the purpose of throwing the plaintiff over the Seneca circuit. But there is an affidavit of merits, and on that ground the defendants will be allowed to plead on payment of costs and consenting that the venue be changed to the county of Cayuga, which will enable the plaintiff to obtain a speedy trial.

Rule accordingly.

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Bluebook (online)

19 Wend. 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-smith-nysupct-1838.