
    Isa Willard Hein, Appellant, v. Honduras Syndicate, Respondent.
    First Department,
    June 3, 1910.
    Pleading — bill of particulars — order precluding evidence — practice.
    A defendant who has served a written notice demanding particulars of items which the plaintiff alleges he expended for the defendant at his request is not entitled to ah order precluding the plaintiff from giving evidence of the items upon trial although he has not complied with the demand.
    A defendant’s right to a bill of-particulars of such items is governed by the' second provision of section 531 of the Code of Civil Procedure; that is to say, before the plaintiff can be precluded from giving evidence of such payments - defendant must obtain an order directing that the particulars be'given. If the plaintiff fails to comply with the order, the defendant may apply for an order limiting the proof in respect to the matters involved.
    Appeal by the plaintiff, Isa Willard Hein, 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 8th day of April, 1910, precluding the plaintiff from giving certain evidence upon the trial herein.
    
      
      Monroe M. SehwarzseMld, for the appellant.
    
      It. L. von Bernuth, for the respondent.
   McLaughlin, J.:

This action is brought to recover, among other things, moneys alleged to have been expended by the plaintiff at the defendant’s request. The specific allegation of the complaint as to the expenditure of such moneys is that “ In the course of his employment as aforesaid, plaintiff was compelled to and did pay large sums of money for the account of defendant, to wit: $2,000 in the year 1903; $2,000 in the year 1904 ; $2,000 in the year 1905 ; $2,000 in the year 1906 ; and $2,000 in the year 1907, for railroad fares, hotel expenses and general expenses to railroads, hotel and other persons on an annual trip in the years aforementioned from and to New York City, to and from various points in and about Honduras, Central America, and return, and plaintiff paid the said sums at the request of the defendant.” . After issue had been joined defendant served a written notice upon the plaintiff in which he demanded “ particulars of the payments alleged to have been made by the plaintiff ” in that part of the complaint above quoted. The demand not having been complied with, the defendant, more than ten days after the service of the same, moved upon notice that the plaintiff be precluded at the trial from giving any evidence as to the payments alleged to have been made. The motion was granted and plaintiff appeals.

The motion was made under section 531 of the Code of Civil Procedure. This section, after stating that it is unnecessary for a party to set forth in a pleading the items of an account, provides that if he does not do so he must deliver to the adverse party within ten days after a written demand therefor, a copy of the account, and if he fails to do that, he is precluded from giving evidence of the account. The section further provides that upon application the court is authorized to make an order in the action, upon notice, directing a bill of particulars of. the claim of either party to be delivered to the adverse party, and in case of default that it shall preclude him from giving evidence with reference thereto. What the defendant here wanted was a bill of particulars, that is, particulars of the payments alleged to have been made.” He did not ask for. a copy of the account, nor is there anything in the complaint from which it can be inferred that there is any account concerning which he could demand a copy. His right to the bill of particulars, therefore, came within the second provision of the section of the Code' referred to, and before the plaintiff could be precluded from giving evidence of .such payments an order had to be obtained directing that the particulars be given. ■ It seems to be settled that the proper practice, in a case’ where a party fails to comply with an order directing service of a bill of particulars, is to apply to the court for. an order limiting the proof in respect to the matters involved. (Gebhard v. Parker, 120 N. Y. 33; Fischer-Hansen v. Stierngranat, 65. App. Div. 162; Smith v. Bradstreet Co., 134 id. 567.) Such practice is fair to both parties. Where a demand is made for a bill of particulars and the adverse party does not think lie is legally obliged to comply with the same, he can refuse and then the question cán be presented to the court in a formal way and tlip. right of the demand passed upon in an-orderly way. To sanction the practice here adopted would be to compel the party upon whom the demand was made either to comply with it or take the risk, of being deprived of giving evidence of what may be a just claim. The language of the section does not require, nor do we think it justifies such construction.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to a motion by defendant to compel plaintiff to serve a bill of particulars.

Ingraham, P.'J., Clarke, Scott and Howling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and ihotion denied, with ten dollars costs, without prejudice to motion as stated in opinion.  