
    Kurt M. Lundberg and Others, as Trustees in Bankruptcy of Frank S. De Ronde Company, Respondents, v. Philip De Ronde, Appellant.
    First Department,
    July 7, 1911.
    Pleading — bill of particulars — renewal of motion — particulars of account stated alleged to be inaccurate.
    A prior order denying a bill of particulars is no bar to a subsequent motion for a bill where a different state of facts is presented.
    Where a defendant, sued on an account stated, alleges as a separate defense that different accounts which were rendered are inaccurate, and contain errors and omissions, he is entitled to a bill of particulars of the account alleged by the plaintiff to have been stated and of the items which made up the same.
    Appeal by the defendant^ Philip De Ronde, 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 20th day of March, 1911, denying the defendant’s motion for a bill of particulars.
    
      Clarence E. Thornall, for the appellant.
    
      Nathan D. Stern, for the respondents.
   McLaughlin, J.:

. The action is upon an account stated. The answer denies that an account was stated between the parties,, and, alleges, as. a separate and distinct defense, that all the accounts rendered by the Frank Si De Bonde .Company to the defendant had upon them letters which indicated that errors and omissions were excepted; that all statements and 'accounts rendered were made from the books of' the corporation, which were inaccurately kept and were not true books of account, and that the'account with the defendant was not a correct account and contained errors and omissions. This is the second appeal. Before the answer was served the defendant moved for a bill of particulars of the account alleged to have been stated. The motion .was granted, but on appeal the same was reversed (138 App. Div. 898) on the ground that there was nothing in the record to show that the account stated was an account containing items. After the defendant answered he again moved for a hill of particulars. The motion was denied, the learned justice at Special Term, as appears from his memorandum, holding that in view of the former decision of the Appellate Division the defendant- was not entitled to a bill of particulars. The fact that the previous motion for a bill of particulars was denied is no reason why this motion should have been denied, provided a different state, of facts were presented. A different state of facts was presented, because when the motion which resulted in the order here appealed from was made the defendant' had answered, and from which it appears that different accounts were rendered, which are alleged to have been inaccurate, arid in addition that errors and omissions were excepted. From these allegations it is fairly to be inferred that the accounts which were rendered did contain items.

Under such circumstances, the plaintiffs’ cause of action . being predicated upon an account stated, I am of the opinion that the defendant was entitled to have a copy of thé account alleged to have been stated as well as the items which made up that account. (Keyes v. Flint Co., 69 App. Div. 141; Herbert v. Hellbut, 119 id. 426; Wells v. Van Aken, 39 Hun, 315.)

The order appealed from, therefore, is reversed, with- ten dollars costs and disbursements, and the motion granted, with ten dollars costs. .

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  