Piven v. Resiloid Corp.

274 A.D. 1074, 85 N.Y.S.2d 757, 1949 N.Y. App. Div. LEXIS 6120

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1949
• Status: Published

Opinion

Defendant appeals from an order denying in part a motion to vacate or modify plaintiff’s demand for a bill of particulars of defenses. Order modified so as to provide that items 1 f, 4, 5 f, and 8 f be eliminated from the demand; and that the defendant, under item 15, shall state the payments claimed to have been made on account of the goods set forth in paragraph Sixth of the amended complaint. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. Items 1 f, 5 f and 8 f require defendant to furnish names of persons, regardless of their participation for the parties in transactions between them. No circumstance warranting the giving of names of witnesses, not acting for the parties, appears in the papers. Plaintiff, as administratrix, is entitled to know and is permitted by the order to know who represented her deceased and the defendant. She is also entitled to the particulars demanded as to the alleged statement of accounts and the payments thereunder, and the performance by defendant of the modification agreement. (Lynch v. Dorsey, 98 App. Div. 163; Mills v. Porter Co., 203 App. Div. 84.) The complaint claims nonpayment as to specific goods. Item 15 should have been limited to the particulars of payments in connection with such goods. Item 4 should have been struck out. It relates to no contract pleaded in the answer. The bill of particulars, to the extent herein indicated, shall be served within ten days from the entry of the order hereon. Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.