Opinion
October 21, 1910.
Clarence M. Lewis [ Ezekiel Fixman with him on the brief], for the appellant.
Arthur Furber, for the respondent.
Present — INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ.
The complaint alleged that "on or about the ninth day of February, 1904, an account was stated between the plaintiff and the defendant and upon such statement a balance of Thirty-six thousand three hundred and two and 85/100 ($36,302.85) dollars was found due to the plaintiff from the defendant, and the defendant then and there promised and agreed to pay the said sum, but no part thereof has been paid," and demanded judgment for said sum. The answer denied each and every allegation in said complaint contained.
Defendant made a motion for a bill of particulars which was granted by an order providing that the plaintiff serve "a bill of particulars setting forth the items comprised in the account alleged to have been stated between the parties hereto, alleged in the complaint." Thereupon the plaintiff served a bill of particulars as follows: "The items comprised in the account alleged to have been stated between the parties hereto are as follows: The sum of $36,302.85 in which sum the defendant Jule Stein is indebted to the plaintiff Leo Stein." Said bill of particulars was returned by the attorney for the defendant on the ground that it failed to comply with the requirements of the order, and thereupon plaintiff made a motion to compel the defendant to accept the service of said bill, which motion was denied, and from the order entered upon said denial the plaintiff appeals.
The complaint alleges that an account was stated between the parties. This the defendant denies. That is the issue presented upon these pleadings. An account stated may consist of a single item. The plaintiff avers that that is the case here. If he succeeds it must be upon the distinct issue tendered by him. If an account has been stated, the items only of that account so stated upon the issues here presented could properly come before the court.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.