« PreviousContinue »
to the defense of the defendant in [or, the prosecution of] this action [state reason]. [Jurat.]
[Signature.] FORM No. 1079. Notice of motion to compel the service of a further account or bill of par.
ticulars. [As in Form 815, p. 1171, substituting for the italic clause between the I and the s, requiring the said — plaintiff — to serve a further bill of particulars of — indicating the respects in which further particularity is desired, as in Forms 1067-1073, of this volume.jora
FORM No. 1080. Order for further account or further bill of particulars. ORDERED, That the aforesaid bill of particulars heretofore served by the [plaintiff] is not a compliance with the order of this court entered on the day of , 19 , directing service of a bill of particulars in the following respects: [state]. It is further
ORDERED, That all proceedings on the part of plaintiff be, and they are hereby stayed until twenty days after full compliance with the said order of , 19 , in the respects mentioned. 98
FORM No. 1081. Notice of motion to compel acceptance of bill of particulars returned as
defective.99 [As in Form 815, p. 1171, stating as relief sought:] for an order directing that the (plaintiff] accept service of [defendant's] bill of particulars.
FORM No. 1082. Notice of motion to preclude evidence for failure to serve account or par.
ticulars.1 [Title of court and action.]
Please take notice, that on the order, a copy of which was serred on — plaintiff's — attorney on the day of
Sia Should not be ordered when (a) The party receiving the bill party swears to his inability to give may either return it as insufficient, more particulars. Kindberg r. Chap or may retain it and move for a furman, 115 App. Div. 153.
ther bill. 98 Adapted from order entered in (b) The party serving the bill may, Quinn u. Fitzgerald, 87 App. Div. 539, in case it is returned, move to compel 84 N. Y. Supp. 728. In the case of a its acceptance, or (as a less desirable defendant the penalty would be a method of practise) may do nothing provision precluding him from giving and wait until the question is raised evidence; see preceding Forms.
upon the trial. 49 In Faller v. Ranger, 99 App. Div. 1A party is only entitled to this 374, 91 N. Y. Supp. 205, the proper order when the adversary is in depractise relating to testing the suffi fault. It is not authorized when a ciency of the bill as served, is dis bill of particulars is served, although cussed, and the following practise such bill is alleged to be defective. suggested:
Reader v. Haggin, 114 App. Div. 112.
19 , requiring the — plaintiff — to serve a — further — bill of particulars on the attorney for the — defendant — on or before the day of
, 19 , and on the affidavit of M. N., verified the day of , 19 , that no such bill has been served :
The undersigned will move this court at a Special Term thereof to be held at the County Court House [or, City Hall], in the city of , on the day of , 19 , at the opening of the court, [or, o'clock in the noon), or as soon thereafter as counsel can be heard, for an order precluding the [plaintiff] from giving evidence, on the trial of this action, of the following matters alleged or referred to in his [complaint
- or, of the following items contained in the account — or, bill of particulars — or, further account — or, bill, etc.], served by said (plaintiff] upon the attorney of the [defendant), to wit, [here specify particularly the matters covered by the order which has not been complied with], or for such other or further relief as may be just, and for the costs of this motion. [Date.]
[Signature and office address of]
Attorney for [moving party). [Address] To Attorney for [adverse party).
FORM No. 1083.
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.]
On reading (and filing] the affidavit of T. Z., verified the day of , 19, [and the original bill of particulars herein,] and the order of this court entered on the day of 19, a copy of which was served on the , on the day of ,19 , requiring the to serve a [further] account - or, bill of particulars — on or before the day of
, 19 , and the affidavit of T. Z., verified the day of , 19 , that no such [further] account - or, bill has been served; and after hearing T. Z., of counsel for the [defendant], and A. T., of counsel [or, no one appearing for the plaintiff] in opposition; now, on motion of T. Z., attorney for the [defendant]:
ORDERED, 1. That the [plaintiff] be precluded from giving any evidence on the trial of this action, in support of the matters whereof he has failed to render a [further] bill of particulars indicated in the order above referred to [or may state them here,
as thus: any evidence of the account and the items thereof men. tioned in the answer of the defendant Y. Z. herein.?]
2. That the [plaintiff] pay to the [defendant] dollars costs of this motion. [Authentication as in Form 820, p. 1174 of this volume.]
FORM No. 1084. Order striking out complaint, or counter-claim for not obeying order for
account or particulars.3
At a Special Term (etc., as in Form
820, p. 1174, of this volume]. [Title of action.]
On reading and filing the affidavit of Y. Z., verified the day of
, 19 , and the order to show cause granted thereon [or, the notice of this motion], dated , 19 , [and on proof of due service thereof], and after hearing T. Z., of counsel for [defendant], and A. T. [or, no one appearing], for
in opposition, and due deliberation having been had; now, on motion of T. Z., attorney for [defendant]:
ORDERED, 1. That the complaint [or, the counter-claim in the answer] herein be stricken out, and the [defendant] have judgment dismissing the same with costs [it is usual to add], provided that if the [plaintiff] within days serve on the [defendant's] attorney a bill of particulars as required by the order of made herein the day of , 19 , and comply in all respects with said order, and pay the costs of this motion below stated, then this motion be denied.
2. That the [plaintiff] pay to the [defendant] dollars, costs of this motion.
Enter: [signature of judge with initials of name and title.]
2 Even if an account stated, the plaintiff or defendant may be precluded from giving any evidence of it. See Keyes v. Flint Co., 69 App. Div. 141, 74 N. Y. Supp. 483. Compare Goings v. Patten, 1 Daly, 168, 17 Abb. Pr. 339.
See preceding note. 3 By an amendment of 1904 to sec. tion 531, it is provided that upon default in service of a bill of particulars ordered by the court, it “ shall precude him from giving evidence of the part or parts of his affirmative allegations of which particulars have not been delivered." In the absence of any authority holding that this amendment has limited the court in its power to punish the default, the above form of order is presented; but
it is thought by the present author that the practice of striking out as a penalty for this kind of disobedience is abrogated. And such seems to have been the disposition of the court of its own motion. See Raff 1. Kos. ter, etc., Co., 37 App. Div. 534, 56 N. Y. Supp. 292; Oatman v. Watrous, 99 App. Div. 256, 90 N. Y. Supp. 940.
4 For approval of this practice see Gross r. Clark, 87 N. Y, 272, 276, 1 Civ. Pro, R. 464, 13 Wkly. Dig. 434, 11 Reporter, 583 (complaint); Wilson v. Fowler, 44 Hun, 89 (counterclaim); Baremore v. Taylor, 53 N. Y. Super. Ct. 119 (defense).
A court of limited statutory juris. diction has no such power. See Bloom v. Huyck, 71 Hun, 252, 25 N. Y. Supp. 7.
MOTION TO COMPEL SEPARATE STATEMENT OF CAUSES OF ACTION. DEFENSES,
1087. Order requiring the plaintiff
to separately state and number his causes of action.
1085. Notice of motion to compel
separate statement of causes
of action. 1086. The same; to compel separate
statement, or to strike out irrelevant allegations.
FORM No. 1085. Notice of motion to compel separate statement of causes of action. [As in Form 815, p. 1171, omitting clause between the † and I, and substituting for the italic clause between the I and the T, the following:] that the plaintiff be required to serve an amended complaint in this action wherein he shall separately state and number the facts constituting each cause of action, viz., his statement of the facts which constitute his alleged cause of action against the defendant [indicating one, as thus:] for injury to the property of the plaintiff, and his statement of the facts which constitute his alleged cause of action against defendant [indicating another, as thus: ] for injuries to plaintiff's person. [Date.]
e shall be serve and the
5 If the complaint contains several causes of action improperly united, contrary to Code Civ. Pro., Š 484, the vice may be reached by a demurrer, and the failure of the plaintiff to separately state and number them will not defeat the demurrer; nor would a failure to move to correct the complaint by compelling a separate statement; nor, if such a motion were made and denied, would the de fendant be concluded by the decision on the motion. See Goldberg v. Utley, 60 N. Y. 427; O'Connor v. Va. Pass., etc., Co., 184 id. 47, 51. Defendant is entitled, however, to have the complaint corrected by motion. Fisher v. N. Y. Staats-Zeitung, 114 App. Div. 824; Whitney v. Wenman, 96 App. Div. 290, 89 N. Y. Supp. 296; Cohn v. Jarecky, 90 Hun, 266, 35 N. Y. Supp. 935.
When it is fairly doubtful whether the complaint states more than one cause of action, and the plaintiff intends to state but a single one, a motion to separately state will not be granted, but defendant will be left to his remedy by demurrer. Weed v. First Nat. Bank, 106 App. Div. 285,
94 N. Y. Supp. 681; Pope v. Kelly, 30 App. Div. 253, 51 N. Y. Supp. 557; O'Brien v. Blaut, 5 App. Div. 223, 39 N. Y. Supp. 218.
The motion will in no case be granted unless more than one cause of action is sufficiently stated. Ring v. Mitchell, 45 Misc. 493, 92 N. Y. Supp. 749.
The motion should be granted where allegations irrelevant to the single cause of action are included (plaintiff asserting that but a single cause of action is set forth), unless plaintiff stipulates to amend his complaint by omitting the irrelevant matters. Blake v. Barnes, 9 N. Y. Supp. 933, 30 St. Rep. 299. Or stipulates, in a proper case, which facts are alleged by way of aggravation. Daly v. Wolaneck, 29 Misc. 162, 60 N, Y. Supp. 162.
The motion must be heard and determined on the pleadings alone. Hatch v. Matthews, 9 Misc. 307, 30 N. Y. Supp. 309; aff’d, 83 Hun, 349.
The several causes of action or defenses set up in a pleading should be distinguished by the phrase, “ for a further and (second) cause of action"
[Signature and office address of] [Address], To
Attorney for [naming party]. Attorney for (adverse party).
FORM No. 1086. The same; to compel separate statement, or to strike out irrelevant alle
gations.7 [Add to the preceding Form:] or, if the plaintiff claim that but one cause of action is set forth, viz., a cause of action to recover damages caused by the defendant's alleged breach of duty as the plaintiff's agent, that the following allegations be stricken out from the complaint as irrelevant: [state specifically).
FORM No. 1087. Order requiring the plaintiff to separately state and number his causes of
action.8 [Title (court order) and recitals, according to the case; see Form
820, p. 1174.] ORDERED, [follow the relief stated in notice in Form 1085 above, and add] with leave to the [defendant] to answer or demur to such amended complaint [or, to reply or demur to such amended answer] within twenty days from the service of the same.
That the plaintiff pay to the defendant dollars costs of this motion.
Enter: [signature of judge by initials or name and title.]
or “defense," or something equiva. lent; though if stated in paragraphs separately numbered, it has been held sufficiently separated and numbered See Waite v. Sabel, 44 App. Div. 634, 62 N. Y. Supp. 419; Parsons r. Hayes, 4 Law Bul. 31.
6 Where the same tortious act results in injury to both person and property, it gives rise to two independent causes of action. Reilly t. Sicilian Asphalt Paving Co., 170 N. Y. 40. This, of course, includes injuries occasioned by negligence, and on motion plaintiff will be compelled to separately state and number the two actions arising. Powers r. Sherin, *9 App. Div. 37, 85 N. Y. Supp. 89.
7 See Schroeder v. Young, 49 App. Div. 640, 63 N. Y. Supp. 110, where this practice was sanctioned.
It would be advisable to frame the notice in this alternative form, wherever it might with some force be claimed by the adverse party that but one cause of action or defense was intended to be pleaded, but which claim would leave certain allegations plainly irrelevant. It was held, in Trenndlich v. Hall, 7 N. Y. Civ. Pro. 62, that the court could grant this alternative relief under the usual prayer “for other and further relief"; the decision seems of doubtful correctness, and the question should be avoided by framing the notice in the alternative.
8 This application is frequently joined with one to make more definite and certain.