Dowdney v. Volkening
The Superior Court of New York City
Appeal from an order. The action is to recover upon a special contract a stipulated price for excavating and removing rock and earth from the defendant’s property. The defendant, for a first defense, made a general denial.
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Appeal from an order. The action is to recover upon a special contract a stipulated price for excavating and removing rock and earth from the defendant’s property. The defendant, for a first defense, made a general denial. For a second defense, the defendant alleged that in the month of August, 1872, an agreement was made between the plaintiff and' defendant, whieh was not reduced to writing, whereby the ■ plaintiff agreed to excavate the rock and earth from eight full lots of land owned by the said defendant. That by such contract such excavation was to be made of the uniform depth of ten…
1Opinion of the Court
By the Coubt.—Moheix, Ch. J.
The Code (section 158) provides two modes of obtaining a bill of particulars, each, however, applicable to a distinct class of cases. The first relates to an action upon an account, and the second to a claim of a party in all other actions.
In the first class of actions it was not necessary to set forth in a pleading “ the items of an account therein alleged,” but the adverse party may demand, by a *317notice in writing, a copy of the account. If the account is not furnished, the party may be precluded from giving evidence thereof.
If the account furnished is defective,…
2Cases cited2 opinions
- Humphry v. CottleyouNew York Supreme Court · 1825
- Stephens v. StrongNew York Supreme Court · 1853