converted by the defendant, with a statment of the alleged value of each article, piece or portion threof so alleged to have been converted. FORM No. 1069. In action of criminal connection. [After the in Form 1064] of the particular times and places at which he expects or intends to prove that any acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff, and of the particular times and places at which he expects or intends to prove that the defendant confessed any such act of adultery or criminal intercourse. FORM No. 1069a. In action for alienation of affections.86a That the said plaintiff furnish to the defendant within twenty days after service of a copy of this order with notice of entry thereof, a bill of particulars in which he shall state, so far as he is able, the particular acts done or committed by the defendant, of which the plaintiff complains and which he intends to prove upon the trial of this action; the general course of conduct of the defendant towards the plaintiff's wife, which the plaintiff claims alienated his wife's affections and caused her to leave or remain away from plaintiff's home; and the times when and place or places where the particular acts complained of were done or committed, and the time within which the general course of conduct on the part of the defendant which is complained of occurred. FORM No. 1070. [After the in Form 1064] — of the particular place or places at which, and the names of at least one of the persons on each occasion in whose presence and hearing he expects or intends to prove the defendant uttered the alleged slanderous words set forth in the complaint.87 FORM No. 1071. [After the in Form 1064] of the name of every person and firm to whom he intends to prove the alleged libelous state 86a Lorham v. Hall, 113 App. Div. Мето. 87 Defendant is entitled to particulars of the place where and of the name of at least one person in whose presence and hearing, the alleged slander was uttered. Rowe r. Washburne, 62 App. Div. 131, 70 N. Y. Supp. 868. 88 Sustained in New York Infant Asylum r. Roosevelt, 35 Hun, 501. Such an application before issue should be denied. Nat. Gram. Co. v. Am. Talking Mach. Co., 50 App. Div. 162, 63 N. Y. Supp. 600. ment was published, giving the names of the towns and cities in which such persons respectively reside [or thus: the names of the persons, who, by reason of the matters in the complaint alleged, ceased or refused to contribute or donate any further sums of money to the plaintiff.] FORM No. 1072. Items of special damage by loss of custom.89 - of the sales and profits that plaintiff has lost by reason of defendant's alleged libels, as claimed and alleged in plaintiff's complaint herein, giving the names of the persons whose custom has been lost and their place of business respectively, and the times when and places where such losses have occurred, as well as the dates and amounts of any transactions or sales or orders which the plaintiff lost the benefit of by reason of the defendant's alleged libels and of the plaintiff's losses thereon specifically.] FORM No. 1073. Items of damage by loss of employment. -giving the names and addresses of the employers in plaintiff's trade and calling who have refused to employ him because of any alleged act of defendant, as charged in the complaint.90 [Title of action.] [Venue.] FORM No. 1074. Proof of service of order, and default. M. N., being duly sworn, says: that he is managing clerk in the office of the [defendant's] attorney herein; that on the 19, at he served the annexed order day of for a bill of particulars upon the [plaintiff's] attorney herein, by delivering to and leaving with him a true copy thereof [or other mode, see Volume I, p. 378, etc.]; that no bill of particulars in this action has been served on the [defendant's] attorney herein. [Jurat.] 89 Sustained by American, etc., Fabric Co. v. Eureka, etc., Hose Co., 18 Abb. N. C. 70. See Bell v. Heatherton. 66 App. Div. 603, 73 N. Y. Supp. 242. Denied before issue joined. See preceding note. [Signature.] Defendant is not entitled to a bill of particulars of the general damage alleged. Town Topics Pub. Co. v. Collier, 114 App. Div. 191; Hanson v. Collier. 51 Misc. 496. 90 See Justum v. Bricklayers' Union, 78 Hun, 503, 29 N. Y. Supp. 621; FORM No. 1075. Order (peremptory) to serve bill of particulars and imposing penalty; after default under prior order.91 [Title of action.] At a Special Term [etc., as in day of On the pleadings herein, and on the order of this court, entered in this action on the 19, directing service by plaintiff of a bill of particulars, and on reading and filing proof of due service of said order and that no bill of particulars has been served; and after hearing A. T., of counsel for , and T. Z., of counsel [or, no one appearing] for in opposition thereto; and due deliberation having been had, now, on motion of A. T., attorney for 19, , within ; ORDERED, that the [plaintiff] deliver to the [defendant] a [verified] bill of the particulars as directed in said order entered on the day of days from the service of this order; or in default thereof that he be and hereby is precluded from giving evidence at the trial of the part or parts of his affirmative allegations of which particulars have not been delivered; and in the meantime let all further proceedings in this action on the part of the [plaintiff] be stayed. [And it is further ordered, that the defendant-have days further time from the service of such bill within which to answer the complaint, or to demur, or make such motion as he may be advised.] [Authentication as in Form 818, p. 1173, of this volume.] FORM No. 1076. Bill of particulars. [Title of court and action.] The following is a bill of the particulars of the claim for which this action is brought [or, the counter-claim in the answer herein. 91 It is proper to incorporate the penalty, for failure to serve the bill, in the original order directing service of the bill if such order be made by the court. If, however, the original order be made by a judge (under 1904 amendment to § 531), or the original order fails to contain the direction precluding, etc., the above Form is applicable. An order precluding the giving of evidence is necessary. Gebhard t. Parker, 120 N. Y. 33. 92 It is not essential that the bill have a caption; and hence an error in inserting a caption which wrongly designates the defendant, may be disregarded if he has not been misled. Benson v. Brown, 10 Wend. 259. Where the nonjoinder of a jointdebtor is waived by omitting to plead it, the objection that the bill was not made out against him also, falls too. Gay r. Cary, 9 Cow. 44. is set up—or, of the matters called for by the demand or, order made herein the day of 19 ]:93 [Here set out the items with precision and certainty; and if any of the items or their dates cannot be given, state that fact, giving the reason for such omission. For instance, in an action for money paid, thus:] The defendants, composing the firm of B. & H., To the plaintiff, Dr. For the following remittances of E. M., the plaintiff, from New York, to B. C. & Co., at New Orleans, for the use of the defendants B. & H., of New Orleans, at their, the said B. & H.'s special instance and request, to be, by the said B. C. & Co., applied to the payment of the indebtedness of B. & H., and which several sums were in the course of mail received and realized by them, and applied to the payment of the business and indebtedness of the said firm of B. & H. 1861, May 3. Checks of the Mechanics' Bank of New York to the branch bank of New Orleans, remitted from New York to New Orleans, by the plaintiff, as above mentioned, to B. C. & Co., on 93 The account should state all the facts which the party will prove. Kellogg v. Paine, 8 How. Pr. 329. The dates must be stated in the bill; and if the party cannot state the preci-e day he must state the year and the month, if he can (Humphry v. Cet tleyou. 4 Cow. 54; s. P., Morgen v. Burrough (N. J., 1887), 8 Atlan. Rep. 517); and the time stated in the bill is material. Quin r. Astor, 2 Wend. 577: but compare Duncan v. Ray, 19 id. 5.0. A general allegation that the plaintiff claims the same items for every other date within a long period, is not a fair compliance. An item of "cash" must show whether it was lent to defendant, or paid for him, or received by him for plaintiff's use. A charge of a note should show whether it was made by defendant, or if made by some one else, whether it was sold to the defendant or delivered to him for collection. Stanley v. Millard, 4 Hill, 50. 66 Stating an item as amount advanced" is not enough. Moran v. Morrissey, 18 Abb. Pr. 131; s. c., less fully, 28 How. Pr. 100. Where the plaintiff has already rendered an account of the items of his demand, it is sufficient in a bill of particulars to refer to it generally as an account rendered, without restating the items, unless the court order further particulars (Goodrich ads. James, 1 Wend. 289); but a reference to balance due on settlement, etc., was held insufficient in Wetmore v. Jennys, 1 Barb. 53. (actions for Plaintiff is not to be required to include the items with which he credits the defendant. Ryckman v. Haight, 15 Johns. 222; Williams v. Shaw, 4 Abb. Pr. 209 price of goods sold). And see Case t. Pharis, (1887), 8 N. Y. State Rep. 548. The English practice requires him to do so. 1 Tidd's Pr. 598. It may be otherwise of an action for the balance of an account, as stated. A bill containing items of service sued for but not placing a value on any one item, but only on the aggregate held insufficient. Colwell v. Ludlam, 1 Month. L. Bul. 42. A bill of particulars cannot change the cause of action stated in the complaint. St. Albans Beef Co. v. Aldridge, 112 App. Div. 803, 99 N. Y. Supp. 398. this day, for account of the defendant, and at the defendant's request [And other items in like detail.] -$3,000 00 Also interest on the aforesaid several amounts from the dates of their respective remittances and payment. [Date.] 94 [Signature and office address of], Attorney for FORM No. 1077. Verification of bill of particulars, or account referred to in pleading.95 [Venue.] A. B., being duly sworn, says: that he is the [plaintiff] above named; that deponent believes the foregoing bill of particulars served herein under direction of the court [or, copy of the account referred to in the complaint or, answer herein], to be true. [Signature.] [Jurat.] - FORM No. 1078. Affidavit to obtain further account or further bill of particulars.96 [Title of court and action.] [Venue.] Y. Z., being duly sworn, says that he is the [defendant] above named; that the [plaintiff] herein, in pursuance of an order requiring him so to do [or, voluntarily or, on request of deponent's attorney], served upon the [defendant's] attorney a copy of the account alleged in [plaintiff's complaint] [or, served on, etc., a bill of particulars], of which the annexed is a copy; and that said copy-account [or, said bill] is defective, and insufficient to enable the [defendant] to prepare for trial [or, answer] in that it does not state the dates of the several items [or otherwise specifying the defect97]: and that a further account [or, bill of particulars] in this respect is essential and material jection. Volume I, pp. 404, 411; Dennison . Smith, 1 Cal. 437; Paine t. Smith, 32 Wisc. 335; Hoag v. Weston, 10 Civ. Pro. Rep. (Browne) 92. 96 If a bill is defective, the applicant should apply for an order for a further bill. Baker v. Sutton, 86 Hun, 588, 33 N. Y. Supp. 1072; Moses v. Hatch, 22 App. Div. 21, 47 N. Y. Supp. 781; Ward v. Littlejohn, 6 N. Y. Supp. 170, 17 Civ. Pro. Rep. 179. 97 Kellogg v. Paine, 8 How. Pr. 329. |