
    Adam F. Gebhard et al. Resp’ts, v. Joshua W. Parker, Impl’d, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 18, 1890.)
    
    '¡Evidence—Bill of items—Demand for, does not exclude evidence of goods sold, etc., unless an order is made.
    The practice under the old Code, § 158, that the preclusion of evidence of an alleged account of which a bill of particulars has been demanded is depen- lent upon an order to that effect, is not changed by Code Civ. Pro., § 581.
    Appeal from judgment of the general term of the superior ■court of the city of Buffalo, affirming judgment entered on verdict in favor of the plaintiffs.
    
      Frank F. Sickles, for app’lt; Lyman M. Baker, for resp’ts.
    
      
       Affirming 10 N. Y. State Rep., 255.
    
   Bradley, J.

The action was brought against the appellant) ■one Frecknall and another, as defendants, and by the complaint the plaintiffs alleged that the defendants, at the time in question) were co-partners, doing business in the partnership name of the “ Daily Hotel Gazette Publishing Company,” and of the “ Daily Standard,” and that between July 2, 1885, and August 31, 1885, the plaintiffs sold and delivered to the defendants as such co-partners at their request, certain goods at an agreed price mentioned which remained unpaid. The defendant, Parker, denied •the alleged co-partnership, and alleged that the partnership of the ■defendants was dissolved on July 1, 1885, of which the plaintiffs had notice, and that for the goods mentioned in the complaint, credit was given to the defendant Frecknall alone, and that the defendants, as co-partners, never had any dealings with the -plaintiffs.

The other defendants did not answer. The defendant Parker made written demand of “ a bill of items of matters set forth in the complaint * * * as the foundation of the plaintiffs’ claim against the defendants.” No bill of items was served. And on the trial the defendants’ objection to evidence offered to prove the sale and delivery of the goods referred to in the complaint, on the ground that the plaintiffs had failed tb comply with such demand, was overruled and exception taken, and evidence of the sale and delivery was introduced. The only controverted question upon the trial was whether the defendants were partners at the time of such sale, and whether the plaintiffs had any notice ■of a previous dissolution of the firm. The jury found for the plaintiffs.

Inasmuch as the alleged sale and delivery of the goods was not controverted by the answer, and no proof of that fact requisite, it is not apparent that the bill of items demanded could have had any essential importance or have furnished any legitimate aid to the defendant upon the issue presented by the pleadings for trial. The only fact which the plaintiffs were, upon the issue, required to establish, was that the defendants, as partners, were liable to pay for the property alleged to have been sold to them; and that was dependent upon the fact either that they were such partners at the time of the sale or that the plaintiffs had the right to so treat the defendants for the purpose of charging them with liability for the goods. It is assumed by the counsel for the parties that the verdict of the jury had the support of evidence. But treating the insistence of the defendants’ counsel, that the exception founded upon the failure of the plaintiffs to furnish a bill of items in compliance with demand presents the question of practice in that respect for consideration, the inquiry arises whether it was error to permit the introduction of the evidence of the sale and delivery of the goods.

The statute provides that the party alleging an account in his pleading must deliver to the adverse party, within ten days after ■a written demand thereof, a copy of the account, and “if he fails so to do he is precluded from giving evidence of the account.” Code, § 531. The provision of the old Code provided that the party of whom such demand was made should, within the same time, deliver to the adverse party a copy of the account “ or be precluded from giving evidence thereof.” Section 158. Prior to the Code, the preclusion of evidence of an alleged account of which a bill of particulars had been demanded was dependent upon an order to that effect; and such was the practice pursued under the old Code. Kellogg v. Paine, 8 How., 329; Whitehall, etc., R. R. Co. v. Myers, 16 Abb. N. S., 34; Moore v. Belloni, 10 J. & S., 184.

The difference between the language of those provisions of the two Codes is verbal rather than substantial, and there is no less reason for the continuance of the rule of practice under the latter than existed when the provisions of the earlier statute were in force. Heither provided for an order except in the event that the account delivered should be defective, in which case provision was made in both statutes that the court or a judge was authorized by order to direct the delivery of a further account. It seems that the demand is effectual to give the party a right to a copy of the account so called for, and that the penalty for failure to comply with it is the preclusion of evidence of the account on the trial. Thus far the statute is plain. But the manner of executing this provision of the statute is a matter of practice. And it should not be such as to subject to surprise the party of whom a demand is claimed to have been made. This situation might arise under ■some circumstances, which may be imagined. The better rule of practice is that the execution of the penal provision of this statute be dependent upon an order. The parties then may act advisedly, and the trial court, when the admissibility of evidence of the account arises, will be embarrassed by no collateral inquiry into the facts upon which the rights of the parties in that respect may depend. By means of an order made on application preliminarily to the trial or to the disposition of the question of the admissibility of the evidence, the purpose and mandate of the statute may be effectuated without surprise or unnecessary prejudice to any of the parties. The reception of the evidence was not error.

The judgment should he affirmed.

All concur, except Yanjst, J., not voting.  