Boughton v. Scott

The action is for work, labor and materials furnished by the plaintiff to the defendant in decorating the latter’s house in the city of New York. The answer consists of a denial, and of a counterclaim for damages for an alleged breach of *839the contract in question. For the purpose of replying to said counterclaim, the plaintiff obtained an order directing defendant to furnish the particulars thereof, which he subsequently did, in compliance with the terms thereof, and thereafter the plaintiff duly made and served his reply to the counterclaim in question. After issue had been joined as aforesaid, a motion was made upon the plaintiff’s affidavit for an order directing the defendant to furnish a bill of particulars of his counterclaim, for the purpose of enabling the plaintiff to prepare for the trial of said' issue, which motion was granted, and, from the order entered thereon, this appeal is taken.

The granting or refusing of an order of this kind rests largely in the discretion of the justice making the same, and if that discretion is fairly and reasonably exercised the same will not be disturbed. The power of the court in the premises, however, is governed by section 531 of the Code of Civil Procedure, which provides for the delivery of a further account where the one delivered is defective. But the application in this case was not of that nature, but, as stated, for the purpose of enabling plaintiff to prepare for trial, he already having had a bill of items of the subject-matter in question. We have not been cited any authority, nor are we able to find one, authorizing the practice pursued herein, and the provisions of the Code, stated, are in our opinion opposed thereto.

On the merits of the application we think the bill of particulars furnished was full and sufficient enough to limit the charges which plaintiff must meet. This evidently was his opinion at the time he used the” same in framing his reply, and the afterthought of procuring another for the purpose of trial should not be countenanced.

For the reason stated, the order appealed from should be reversed, with ten dollars costs and disbursements.

Scotchman, J., concurs.

Order reversed, with ten dollars costs and disbursements.