Kelsey v. Sargent

A defendant may be required to serve a bill of particulars as to matter set forth i'n his answer, which is effectual only as a defense, as well as to matter set up as a counter-claim. Where the matter is left uncertain, by reason of general averments, it is for the court below to determine whether further information required by plaintiff shall be given by a more specific answer or by a bill of particulars, and its determination is not re viewable here.

Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 23, 1885, which affirmed an order of Special Term, requiring defendant to serve a bill of particulars. This action was brought to- compel the surrender of certain stock which the complaint alleged had been pledged by plaintiff to defendant as security for the payment of a promissory note, and also to save defendant harmless from certain guaranties executed by him. The complaint alleged payment of the note and upon information and belief that defendant “ was made free and discharged from all his contracts as guarantor.” The answer denied said averment and alleged “ that the defendant has not been released from liability on said guaranties and is still liable on three or more of such guaranties.” The order appealed from requires defendant to serve “a bill of particulars of the guaranties upon which he claims to be liable as alleged in the answer.” The plaintiff cannot require the defendant to furnish a bill of particulars of his denial. (Code, § 531.) The order appealed from is not re viewable in this court. (Code of Civ. Pro., § 190; Hilton v. Beecher, 59 N. Y. 176 ; Dwight v. Germania Life Ins. Co., 84 id. 493; Witkowski v. Paramore, 93 id. 467.)