Opinion
October 12, 1906.
Theodore T. Baylor, for the appellant.
August Reymert, for the respondent.
In view of the affidavit of the defendant I do not think that this order should be sustained. The bill of particulars served specified as one of the items for which defendant asked a judgment that between October 30, 1897, and June 16, 1900, 141 weeks, the defendant expended on account of the plaintiff ten dollars a week for theatres, meals, etc., and as another item he expended for plaintiff for trips and excursions, two per week, during four months each year for five seasons about $1,400. He alleges in his affidavit in opposition to the motion that these were running disbursements for railroad fares and at theatres and hotels; that no itemized account of the disbursements was ever kept and defendant is unable to furnish a detailed statement of the amount included in those items, and on account of the circumstance under which these disbursements were made it is impossible for him to specify them more particularly than he has in the bill of particulars furnished. If the defendant is required to give these particulars it would result in defeating his claim for reimbursement. There was no affidavit submitted by the plaintiff which denies that the defendant actually advanced money for the purposes mentioned, except the reply to the counterclaim, and if such advances were actually made the plaintiff must have as much information about them as the defendant.
I think that the bill of particulars furnished, containing all the information that the defendant could give, was sufficient, and consequently the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a further bill of particulars denied.
O'BRIEN, P.J., CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied. Order filed.