Smith v. Bradstreet Co.

Appellate Division of the Supreme Court of New York

Smith v. Bradstreet Co.

134 A.D. 567, 119 N.Y.S. 487, 1909 N.Y. App. Div. LEXIS 2918

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 1909

StatusPublished

Cited by6 cases

This text of 134 A.D. 567 (Smith v. Bradstreet Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Bradstreet Co., 134 A.D. 567, 119 N.Y.S. 487, 1909 N.Y. App. Div. LEXIS 2918 (N.Y. Ct. App. 1909).

Pincite

Opinion

Per Curiam:

We do not think the order is open to the objections urged by the appellant, and under the rule recognized and approved in Dietz v. Leber (33 App. Div. 563) the matters directed to be disclosed by [568]*568the order are well within the discretionary powers of the court at Special Term. If the plaintiff has suffered special damages they must be such damages as are known to him, and the defendants ought not to be called upon to prepare to meet every possible damage which the plaintiff might attempt to prove; it is the object of all pleading, and a bill of particulars is but a supplemental part of the pleadings, that the parties shall be called upon to litigate definite issues, where each is on an equal footing, and this could not be the case under the plaintiff’s complaint. It may be that there are some parts of the order which might just as well not have been made, as they are sufficiently covered by the general provisions, but we discover no harm which can come to the plaintiff by complying with the order as it is. We think, however, as a matter of practice, that it is better as a general rule to reserve the question of whether the party required to furnish a bill of particulars shall be precluded from giving evidence and make it the subject of a separate motion. If nc bill is furnished, the order would follow as matter of course. If a bill is furnished, the question whether it is sufficiently full and complete can better be determined after service and before trial than at a time when the court is ready to take up and dispose of the controversy on the merits. (Gebhard v. Parker, 120 N. Y. 33, 37; Fatter v. Ranger, 99 App. Div. 374; Bartow v. Sidway, 72 Hun, 435.) It does not seem to us to be an objection to a motion of such a character that thereby the party directed to. furnish the bill is precluded from furnishing a further bill if -the one served is found insufficient (Reader v. Haggin, 114 App. Div. 112), for such relief is entirely within the power of the court when the motion comes before it.

The order appealed from should be modified by striking therefrom paragraph 3, relative to the giving of evidence without prejudice to a further application if so advised, and as modified it should be affirmed, without costs.

Hirsohberg, P. J., Woodward, Burr, Rich and Hiller, JJ., concurred.

Order modified in accordance with opinion, without prejudice to a further application if so advised, and as so modified affirmed, without costs.

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Per Curiam:

We do not think the order is open to the objections urged by the appellant, and under the rule recognized and approved in Dietz v. Leber (33 App. Div. 563) the matters directed to be disclosed by [568]*568the order are well within the discretionary powers of the court at Special Term. If the plaintiff has suffered special damages they must be such damages as are known to him, and the defendants ought not to be called upon to prepare to meet every possible damage which the plaintiff might attempt to prove; it is the object of all pleading, and a bill of particulars is but a supplemental part of the pleadings, that the parties shall be called upon to litigate definite issues, where each is on an equal footing, and this could not be the case under the plaintiff’s complaint. It may be that there are some parts of the order which might just as well not have been made, as they are sufficiently covered by the general provisions, but we discover no harm which can come to the plaintiff by complying with the order as it is. We think, however, as a matter of practice, that it is better as a general rule to reserve the question of whether the party required to furnish a bill of particulars shall be precluded from giving evidence and make it the subject of a separate motion. If nc bill is furnished, the order would follow as matter of course. If a bill is furnished, the question whether it is sufficiently full and complete can better be determined after service and before trial than at a time when the court is ready to take up and dispose of the controversy on the merits. (Gebhard v. Parker, 120 N. Y. 33, 37; Fatter v. Ranger, 99 App. Div. 374; Bartow v. Sidway, 72 Hun, 435.) It does not seem to us to be an objection to a motion of such a character that thereby the party directed to. furnish the bill is precluded from furnishing a further bill if -the one served is found insufficient (Reader v. Haggin, 114 App. Div. 112), for such relief is entirely within the power of the court when the motion comes before it.

The order appealed from should be modified by striking therefrom paragraph 3, relative to the giving of evidence without prejudice to a further application if so advised, and as modified it should be affirmed, without costs.

Hirsohberg, P. J., Woodward, Burr, Rich and Hiller, JJ., concurred.

Order modified in accordance with opinion, without prejudice to a further application if so advised, and as so modified affirmed, without costs.

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134 A.D. 567, 119 N.Y.S. 487, 1909 N.Y. App. Div. LEXIS 2918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-bradstreet-co-nyappdiv-1909.

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