Opinion
May Term, 1903.
W.T. Shaw, for the appellant.
Joseph Rosch, Jr., for the respondent.
The complaint in this action alleges that on the 25th day of January, 1889, the defendant was indebted on account to the plaintiff for moneys paid out and loaned to the defendant in the sum of $189; that the defendant has not paid any portion of said sum, and that the same is still owing the plaintiff, with interest. The answer contains a general denial and a plea of payment. Section 531 of the Code of Civil Procedure provides that where a party does not set forth, in a verified pleading, the items of an account therein alleged, he must deliver to the adverse party, within ten days after a written demand thereof, a verified copy of the account. "The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective." In accordance with the provisions of this section, defendant's attorney demanded an account from the plaintiff. In response to such demand the defendant furnished this paper:
"The plaintiff herein states the following as the bill of particulars to his cause of action herein.
"`PORT JERVIS, Jan. 25 th, 1889.
"`Received of Edward C. Beirne, Forty Dollars out of pay for December, '88, of $90.00 drawn this day from paymaster by E.C. Beirne, the balance of $50.00 is credited to my account, leaving due him now $189.00.
"`W.H. SANDERSON.' "W.F. O'NEILL, "Plaintiff's Attorney."
Thereupon the defendant moved, under section 531, for a further account or bill of particulars, and the court made the order from which the present appeal is taken. That order was clearly right. The paper served in response to the defendant's demand was in no sense an account or bill of particulars, but apparently nothing more than a copy of a receipt alleged to have been given to the plaintiff by the defendant. At most it was an evidence of indebtedness which could be used upon the trial, but failed to disclose distinctly what was the claim of the plaintiff as to any of the items of the account save the ninety dollars therein mentioned.
The order should be affirmed.
WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.