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FORM, No. 1053. Affidavit to move for leave to file supplemental answer setting up payment,

or release. [Title of court and action.]

Y. Z., defendant above named, being duly sworn, says:

I. That this action was commenced on the day of 19 ; that issue was joined therein by the service of this defendant's answer on the day of , 19 , and this cause is now upon the calendar of this court, awaiting trial.

II. Deponent further says, that this action is brought (upon a promissory note alleged to have been made by him, and to be held and owned by the plaintiff]. That since the joining of the issue, viz., on the day of , 19, this defendant paid to the plaintiff the sum of dollars in full payment of the note mentioned in the complaint, and of the costs, up to that day, accrued herein, or, plaintiff duly executed and delivered to defendant a general release under seal of and from any and all claims and demands whatsoever, which payment [release] deponent desires to set up in his supplemental answer, a draft of which is hereto annexed, marked "A."62

[Conclude as in last Form, from the *. ]

FORM. No. 1054. Order to show cause why a party should not have leave to serve a supple

mental pleading. [As in Form 818, p. 1173, omitting matter in brackets before the I and substituting for the italic matter between the and the following:] the [plaintiff] should not have leave to serve the proposed supplemental complaint (or other supplemental pleading] [or, a supplemental — name of pleading — setting up the matters contained in the annexed affidavit.

FORM. No. 1055. Order granting leave to serve a supplemental pleading.63 [Caption and recitals as in Form 820, p. 1174.]

ORDERED, that the [plaintiff] have leave to make, file and serve the proposed supplemental [complaint) in addition to [or, in place of] the original [complaint], and that the service of the copy thereof, heretofore made, stands as the service of the same [or, to make, file and serve within days from the entry and service of a copy of this order, a supplemental — complaint - in addition to — or, in place of — the original — complaint – setting up the matters contained in the affidavit of A. B., herein before referred to — or, in the notice of motion — or, order to show cause — herein).

62 The proposed supplemental an: swer must be served with the motion papers. Diehl v. Buck, 61 App. Div. 570, 70 N. Y. Supp. 818.

63 There is said to be no authority for allowing a combined “amended and supplemental ” pleading. Oelberman v. N. Y. & Northern R. R. Co.,

(Insert provision that case retain its place on the general calendar; see Form 1047.]

[If conditions are to be imposed, state them.] Enter: [signature of judge by initials of name and title.]

FORM. No. 1056.

Supplemental pleading.64 (Title of court and action.]

In and by this supplemental [and amended] complaint, served under and pursuant to an order of this court, dated the day of , 19 , to which reference is hereby made, A. B., plaintiff [continuing as in commencement of an original comiplaint.]

31 Abb. V. C. 256, 29 N. Y. Supp. 864. That kind of a pleading is, however, often met with and considered. See Saver f. Beirne, 78 App. Div. 491, 79 N. Y. Supp. 696. But an order grant ing leave to serve a supplemental complaint will not be set aside because it should have been designated as an amended complaint. Frisbie v. Averill, 87 Hun, 217, 33 N. Y. Supp. 1021.

64 On an application for leave to serve, the sufficiency or truth of the facts sought to be added will not be considered. Bell Tel. Co. v. Home Tel. Co., 52 App. Div. 13, 64 N. Y. Supp. 821. Nor will their bearing upon the

88

relief sought be determined. Central Trust Co. v. West India Imp. Co., 109 App. Div. 517, 96 N. Y. Supp. 519. A supplemental complaint will not be allowed where such a pleading would state an entirely new and different cause of action from that existing when the action was begun. Bush ť. O'Brien, 58 App. Div. 118, 68 N. Y. Supp. 651.

A supplemental pleading may be in addition to, or in place of, the former pleading. When in place of the original it may be attacked by demurrer in the same manner. Stearns v. Lichtenstein, 48 App. Div. 498, 62 N. Y. Supp. 949.

ARTICLE IX. PARTICULARS; AND MODIFYING or STRIKING OUT ADVERSARY'S

PLEADING.

SECTION

1. COPY OF ACCOUNT, OR BILL OF PARTICULARS.
II. MOTION TO COMPEL SEPARATE STATEMENT.
III. MOTION TO MAKE MORE DEFINITE AND CERTAIN.
IV. MOTION TO STRIKE OUT A PLEADING OR MATTER THEREFBOM,

SECTION 1.
COPY OF ACCOUNT, OR BILL OF PARTICULARS.

FORMS.
I. PROCEEDINGS TO OBTAIN COPY OF AC- 1075. Order (peremptory) to serve
COUNT REFERRED TO IN PLEADING.

bill of particulars and impos1057. Demand of copy of account re

ing penalty; after default unferred to in pleadings.

der order. 1058. Affidavit to obtain stay of pro- 1076, Bill of particulars.

ceedings and extension of time, 1077. Verification of bill of particuon demanding copy of account.

lars, or account referred to in 1059. Copy of account.

pleading. 1060. Afidavit to obtain further ac- 1078. Affidavit to obtain further account.

count or further bill of par1061. Order precluding the giving of

ticulars. evidence, after failure to serve 1079. Notice of motion to compel the copy of account.

service of a further account or 1062. Notice of motion or order to

bill of particulars. show cause upon application 1080, Order for further account or to strike out demand.

further bill of particulars.

1081. Notice of motion to compel acII. BILLS OF PARTICULARS.

ceptance of bill of particulars 1063. Affidavit to obtain order for bill

returned as defective. of particulars.

1082. Notice of motion to preclude 1064. Order to furnish a bill of par.

evidence for failure to serve ticulars (General Form).

account or particulars. 1065-1073. Statement of particulars 1083. Order precluding evidence at suitable to be inserted in fore

the trial. going Form.

1084, – striking out complaint, or 1074. Proof of service of order, and

counter-claim for not obeying default.

order for account or particu

lars. I. PROCEEDINGS TO OBTAIN COPY OF ACCOUNT REFERRED TO IN

PLEADING.

FORM. No. 1057. Demand of copy of account referred to in pleadings.65 [Title of court and action.]

I hereby demand that you deliver to me, within ten days of service of this demand, a copy [if the pleading be verified, say:

65 The right to proceed by this kind of demand is statutory, and only ex

tends to a case of an account mentioned in the pleading and items,

a verified copy) of the account [if more than one account is referred to, identify the one demanded] alleged in the complaint [or, the answer] in this action.66 [Date.]

[Signature and office address of], [Address] To

Attorney for
Attorney for

FORM, No. 1058. Affidavit to obtain stay of proceedings and extension of time, on demanding

copy of account.67 [Title of court and action.] [Venue.]

Y. Z., defendant above named, being duly sworn, says, that this action was commenced by the service of a summons and complaint on this defendant, on the day of , 19, and that defendant's time to plead will expire on the day of

, 19 ; that the action is brouglit to recover the sum of

such as are proper matter of book account, or which were actually matter of account between the parties. It does not extend to a case of items of damage, which have not been made matter of account between the parties. Compare the following cases: Main v. Pender, 88 App. Div. 237, 85 N. Y. Supp. 428; Barkley r. Renns., etc., R. R. Co., 27 Hun, 515, 2 Civ. Pro. Rep. 409; Cunard v. Francklyn, 49 Hun, 233, 1 N. Y. Supp. 877; Ives r. Shaw, 31 How, Pr. 54; Fullerton v. Gaylord, 7 Robt. 551; Dowdney v. Volkening, 37 N. Y. Super. Ct. 313; Johnson D. Mallory, 2 Robt. 681; Black r. Chesser, 12 Ohio St. 621; Blackie 0. Neilson, 6 Bosw. 681; Clegg v. Am. Newspaper Union, 7 Abb. N. C. 59; Moore v. Belloni, 42 N. Y. Super. Ct. 184. An account stated, containing items, falls within

531, and the adverse party is en titled to a copy. Keyes v. Flint Co., 69 App. Div. 141, 74 N. Y. Supp. 483.

A motion may be made to direct the giving of the bill of items, in which case the court may direct the bill upon an inspection of the plead ings, and without any affidavit as to necessity. Badger . Gilroy, 21 Misc. 466, 47 N. Y. Supp. 669.

It has been intimated that demand. ing a copy of an account precludes a

subsequent motion to make the pleading more definite and certain. M'Kinney », M'Kinney, 12 How. Pr. 22. But this is not to be applied except so far as the remedy by requiring the account is sufficient. Even then the demand does not take away the power of the court to require amendment.

A notion for a further account may be made on affidavits similar to those relating to a bill of particulars, showing that the account delivered is de. fective. Code Civ. Pro., & 531. Such further account is matter of right if the bill of items served is incomplete, See Wells v. Van Aken, 39 Hun, 315.

66 The items of the account, annexed to the complaint and made part of it, will satisfy the requirement of the section, and a motion for a bill of items is properly denied. Liebmann's Sons Co. v. Cody, 21 App. Div. 235, 47 N. Y. Supp. 669.

67 N. Y. Code Civ. Pro., $ 531, requires that the party pleading an "account” shall, within ten days after demand in writing, serve a copy of such account. But as neither the plaintiff's proceedings are stayed, nor the defendant's time to answer extended by a simple demand, it is some. times well to obtain in the firsi in. stance an order from the court.

dollars on an alleged account [here state cause of action -e. 9., thus] for goods alleged to have been sold and delivered by the plaintiff to this defendant; that the particulars respecting such sale and delivery do not appear in the plaintiff's complaint, and that this defendant has duly annexed a copy of said account, of which demand a copy is annexed, with proof of service thereof upon plaintiff's attorney; that this defendant is advised by his counsel, T. Z., who resides at , and verily believes, that he will not be able to answer the same properly without a copy of said account.

[Add oath to merits, as in Form 1031, paragraph VII.]

Deponent, therefore, asks that his time to answer or demur to, or otherwise move against the complaint, be extended days from the day of the service of a bill of items pursuant to said demand. [Jurat.]

FORM. No. 1059.

Copy of account. [Title of court and action.]

[llere set forth the account referred to in the pleading.] 68 [Address to attorney.]

Please take notice, that the above is a copy of the items of the account demanded by you [or, referred to in the complaint — or, answer] in this action. [Date.]

[Signature and office address of],

Attorney for [Verification, if pleading is verified as in Form 1077, substituting, copy of the account referred to in the — complaintherein, in place of the words, bill of particulars of the claim of the — plaintiff -- herein.]

FORM No. 1060.

Affidavit to obtain further account. [Adapt from Form 1078.]

GS The adverse party is entitled to the items of credits as well as debits. badger v. Gilroy, 21 Misc. 406, 47 N. Y. Supp. 669; Un. Hardw, Co. v. Flagler, 8 N. Y. St. Rep. 894.

A copy of a statement of the bal ance due, signed by defendant, is not

a compliance with the statute. Beirue v. Sanderson, 83 App. Div. 62, 82 N. Y. Supp. 493; Wells v. Van Aken, 39 Hun, 315. Each item, with its date, amount and general character should be set forth. Kellogg e. Paine, 8 How. Pr. 329.

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