Winslow v. Kierski

2 Sandf. 304

• Court: The Superior Court of New York City
• Decided: January 27, 1849
• Status: Published

Opinion

By the Court. Oakley, Ch. J.

Since the code of procedure took effect, there is no longer any provision or practice requiring bills of particulars to be given. The 135th section of the code was not applicable to the complaint below. There was no allegation, nor any reasonable inference, that the plaintiff’s demand consisted of more than twenty items.

If the complaint was insufficient, the plaintiffs might have been compelled to amend it, before the defendant could have been required to answer. But no application of that kind was made to the court below. It is clear, the court was not authorized to give judgment against the plaintiff because of his omission to furnish the particulars on the demand made.

The plaintiffs claimed against their client for services as attorneys in two specified suits. The code gave a fixed compensation for such services, for each stage of the respective suits. There could have been no surprise or want of information on the part of the defendant, as to the extent and character of the claim. Whether the claim were correct or not, would depend upon the evidence ; and he was at liberty to question both the retainer and the amount.

Judgment reversed.