Stone v. Hudson Valley Railway Co.

This action is not upon an account, but to recover the amount of certain assessments which the associa*6tion represented by the plaintiff made against the Stillwater and Mechanicville Street Railway Company, the predecessor of the defendant railway company. The assessments so sought to be recovered do-not in any sense constitute an account between the parties. 1 Nichol Pr. 857. Therefore, the demand for a bill of particulars cannot be regarded as serving the purpose of a demand for a copy of an account under the provisions of section 531 of the Code of Oivil Procedure.

There is no provision in the Oode of Oivil Procedure authorizing the service of a demand for a bill of particulars. Relief of that character is obtained by motion and pursuant to an order of the court. The demand, therefore, served in this case was a nullity and the plaintiff might properly have disregarded it.

The case of Main v. Pender, 88 App. Div. 237, is an authority that where an improper demand for a hill of particulars is served, the opposing party has the right to have it stricken from the case. In that case the motion was made and heard within ten days after the service of the demand, and in that regard differs from the one at bar, as here the service of the demand was made on the eleventh day of March and the motion to strike out was heard on the twenty-fifth of March, at a date subsequent to the expiration of the ten days mentioned in the demand. I fail, however, to see how that fact affects the rights of the plaintiff. The defendant took its chance of having the improper demand stricken from the casé; and the plaintiff in making this motion took his chance of having his motion denied on the ground that the demand for a bill of particulars was equivalent to a demand for an account.

In Main v. Pender, supra, the cause of action was in tort; nevertheless, the court was of the opinion that the question whether the demand was proper or not, was one upon which lawyers and possibly courts might differ; and, therefore, the plaintiff was correct in his practice in making his motion to strike out or nullify the demand. If such was the case there, the greater reason for his motion appears here, because a still more doubtful question may be said to exist as to whether *7the action is one where a demand for a copy of account is proper, the defendant’s attorney having in his brief made the claim that the action is one wherein a demand for a copy of account is proper.

I think, therefore, the motion must prevail and an order granted striking out the demand as improper, with costs.

Ordered accordingly.