
    Carl Fischer-Hansen, Appellant, v. Malte Liewen Stierngranat, Respondent.
    
      Action upon an account — effect of a failure to furnish a bill of particulars. Where the plaintiff in an action upon an account fails to serve a copy of the account within ten days after a demand therefor, the court may, under section 531 of the Code of Civil Procedure, preclude him from giving evidence of the account, but it has no power to preclude him from giving evidence of his cause of action.
    Appeal by the plaintiff, Carl Fischer-Hansen, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 29th day of August, 1901, precluding the plaintiff from giving, upon a trial of the action, any evidence or the cause of action set forth in his complaint.
    
      
      Edmund F. Hardvng, for the appellant.
    
      Charles P. Rogers, for the respondent.
   Ingraham, J.:

The action was to recover for legal services rendered by the plaintiff, an attorney and counselor at law. The complaint was served on December 21, 1899. Two days thereafter the defendant’s attorney served a demand for a bill of the particulars of the plaintiff’s claim within ten days after the service of the notice. Upon this demand, the complaint and an affidavit of the plaintiff’s attorney that more than ten days had elapsed since the service of the demand and that no bill of particulars had been served, the defendant moved that the plaintiff be precluded from giving evidence of his account and cause of action upon the trial.

This motion was made under section 531 of the Code of Civil Procedure, as though the action was upon an account, bpt an examination of the complaint shows that no account was alleged; and while it was a proper case for an application to the court for an order requiring a bill of particulars under the last clause of the section of the Code of Civil Procedure referred to, it was not a case in which the plaintiff was bound to deliver within ten days a copy of an account set forth in the complaint, as no account was therein set forth.

In answer to this application an affidavit of the plaintiff was presented in which he admitted the receipt of the notice; that he unintentionally overlooked the matter ; that when the papers were served he at once prepared a bill of particulars and served the same on the 9th of August, 1901, before the hearing of the motion. Notwithstanding this statement the court granted the motion, and an order was entered that the plaintiff, having failed to serve a bill of particulars within ten days after demand, as required by section 531 of the Code, was precluded from giving any evidence of the account and cause of action set forth in the complaint in this action.

We think this order was entirely unauthorized. The section of the Code referred to does not authorize the court to grant an order precluding the plaintiff from giving evidence as to his cause of action. Where an account is pleaded and the plaintiff fails to furnish a copy of such account within ten days after a notice, the court may preclude the defendant from giving evidence of the account, but it has no power to preclude him from giving evidence of his cause of action because he has failed to serve a bill of particulars until required so to do by the court.

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

Patterson, Hatch and Laughlin, JJ., concurred ; Van Brunt, P. J., concurred in result.

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