Brandt v. City of New York
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant Luke A. Burke from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of September, 1904, directing the said defendant to serve upon the plaintiff a bill of particulars.
1Opinion of the Court
O’Brien, J.:
The cases of Reitmayer v. Crombie (94 App. Div. 303) and O'Rourke v. U. S. Mortgage & Trust Co. (95 id. 518) are authority for the proposition that where a recovery is sought upon the theory of a contract which has been performed, and wherein the answer denies full performance, a defendant is not required to give the particulars in which the plaintiff has failed to perform, and for the good and sufficient reason that such knowledge is as much within the possession of the plaintiff as of the defendant, and before the former can recover it will be necessary to prove full performance.
2Cases cited1 opinion
- Reitmayer v. CrombieAppellate Division of the Supreme Court of the State of New York · 1904
3Cited by2 opinions
- Smith v. AndersonAppellate Division of the Supreme Court of the State of New York · 1908
- Peck v. Bathurst Lumber Co.Appellate Division of the Supreme Court of the State of New York · 1917