Opinion
January 8, 1909.
Achilles H. Kohn, for the appellant.
Franklin Bien, for the respondent.
Plaintiff appeals from an order requiring him to give a bill of particulars before answer. The complaint is most general in form, alleging that between certain dates the plaintiff rendered services to defendant, at his request, as manager, adviser, agent and representative at the city of New York and elsewhere with reference to certain mining properties. The order is made upon the theory that plaintiff is uniting four causes of action claiming separately for services as manager, as adviser, as agent and as representative, and requires him to give separate items of services rendered in each capacity. The complaint, as it stands, does not require this construction. There is but a single cause of action stated for services, and the statement of the various relations which the plaintiff bore to the defendant is merely descriptive and, in fact, is surplusage. There was no ground for granting the motion before answer. The defendant does not require a bill of particulars in order to frame his answer, for he distinctly states that he has no knowledge of any such claim as plaintiff makes, or of any services rendered, and will deny the same. The suggestion that a bill of particulars will be required because it may suggest defenses of which defendant is not now aware has the merit of novelty, but no other merit which appeals to us.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.