Dowling v. Kelly

In an action for an accounting of moneys alleged to have been intrusted by the plaintiff to the defendant for investment, the defendant pleads payment. Order denying defendant’s motion to vacate or modify the notice of examination before trial, and order denying defendant’s motion to vacate plaintiff’s demand for a bill of particulars of the defense of payment, affirmed, with ten dollars costs and disbursements. The examination is to proceed on five days’ notice, and the bill of particulars is to be served within ten days from the entry of the order hereon. In our opinion the record discloses special circumstances which justify a departure from the general rule not to direct a bill of particulars of the defense of payment. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.