Spies v. Michelsen

15 Misc. 414, 36 N.Y.S. 619, 71 N.Y. St. Rep. 785

• Court: New York Supreme Court
• Decided: January 15, 1896
• Status: Published

Opinion

Giegerich, J.

The complaint was dismissed at the trial "because it did not, in my opinion, state facts, sufficient to constitute a cause of action; and plaintiff has appealed. The latter seeks to incorporate into the case on appeal “ a copy of the account existing between the estate of Francis Spies, ■deceased, and the defendant, Heinrich Michelsen, from the 1st ■day of January, 1893 (the day of the last previous accounting between the said Francis Spies, deceased, and the said defendant) to the 21st day of June, 1893,” served in pursuance of a ■demand therefor by the defendant’s attorney, and which the ■defendant, by proposed amendments, seeks to eliminate from plaintiff’s proposed case. It is urged by plaintiff that “ the bill of particulars is regarded as being incorporated into the •complaint, the two are read together as if they constituted a •complaint consisting of a statement of the cause of action with particulars, and are deemed the complaint,” but the .authorities do not favor the position contended for. . ,

The. Code contemplates two kinds of bills of particulars, the first relating to “ the items- of an account ” alleged in a pleading, "the second to matters constituting any other form of claim. Code Civ. Proc. § 531; Dowdney v. Volkening, 37 N. Y. Super. Ct. (5 J. & S.) 313, 316. The copy account in the •case at bar comes clearly within the first class of cases, and is, therefore, subject to the rules applicable to a bill of particulars.

It is not the office of a bill of particulars to state the grounds upon which the plaintiff claims to recover, but only to point ■out the items and particulars embraced in his claim in order to identify them. Seaman v. Low, 17 N. Y. Super. Ct. (4 Bosw.) 337. A party cannot plead or answer to a bill of particulars which forms no part of the record. Kreiss v. Seligman, 8 Barb. 439. “ The facts that would entitle a party to judgment must be stated in the pleading; the details of the •claim are to be stated in the bill of particulars ” (per Ingraham, J., in Arrow Steamship Co. v. Bennett, 23 Civ. Proc. Rep. 234, 237 ; 26 N. Y. Supp. 948, 949) ; and where the sole question determined by the judgment is that- the pleading -demurred to does or does not state facts sufficient to. constitute a cause of action, the addition- to the record of any ¡paper other than, the'pleadings, the demurrer and the'judgment is unnecessary. Arrow Steamship Co. v. Bennett, supra. See Kreiss v. Seligman, supra. It would seem to follow .from - these views that the copy account in the present case forms no part of the complaint, and since it was not put in evidence it forms no part of the record ; hence the defendant’s proposed amendments' numbered 2, 3 and 5 respectively should be • allowed.

All other proposed" amendments contested by. plaintiff’s counsel are allowed.

Case and exceptions settled and ordered on file.