
    (.)
    POWELL v. SCHENCK.
    (Supreme Court, General Term, Second Department.
    June 14, 1895.)
    Pleading—Bill or Particulars.
    Where the answer in an action on notes alleges that the notes were given to accommodate the payee, who was at the time selling goods to the maker, that the balance of the indebtedness was to be adjusted by an accounting, and that the maker had paid more than the amount of goods delivered, a bill of particulars of the goods delivered will not be ordered. Brown, P. J., dissenting.
    Appeal from special term.
    Action by Henry A. Powell, assignee, etc., against John P. Schenek. Prom an order directing defendant to furnish a bill of particulars, defendant appeals.
    Reversed.
    Argued before DYKMAN, BROWN, and PRATT, JJ.
    Gustav Hartimann, for plaintiff.
    Geo. A. Stearns, for defendant.
   PRATT, J.

The complaint is on six promissory notes. The answer is that the notes were given to accommodate the payee, who was at the time selling goods to the maker; that the balance of indebtedness was to be adjusted by an accounting; and that the maker had paid more than the amount of goods delivered. Thereupon the plaintiff moves that defendant serve a bill of particulars of the goods delivered, etc. We are not able to see that the plaintiff requires any bill of particulars. If defendant is not able to prove the notes to be accommodation, the plaintiff will get judgment for their face. If defendant proves them to be accommodation, the plaintiff will reply by showing the amount of goods delivered. In that case a bill of items from plaintiff might be convenient, but that is not asked. Moreover, it is shown that plaintiff has full books of account, and that defendant did not keep accounts of the transactions, but relied upon those of the other party.

Order appealed from reversed, and motion for bill of particulars denied, with $10 costs and disbursements of appeal.

DYKMAN, J., concurs. BROWN, P. J. dissents.  