
    Sanford A. Child and Peter T. Martin, Respondents, v. John O’Rourke, Appellant.
    Third Department,
    November 27, 1907.
    Partnership accounting—bill of particulars denied.
    When in an action for a partnership accounting the right thereto is admitted by the answer, the. plaintiff should not be required to give a bill of particulars of immaterial and unnecessary allegations that the defendant used the partnership property for his own purposes and in payment of fictitious claims without accounting therefor. Such allegations are merely surplusage and the facts will be provable under general allegations appropriate to a partnership accounting.
    Appeal by the defendant, John O’Eourke, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of- the clerk of the county of Franklin on the 20th day of August, 1907, denying, the defendant’s motion for a bill of particulars.
    
      A. J. Nellis and Thomas Ocmvbwell, for the appellant.
    
      Wells cfe Moore, for the respondents.
   Cochrane, J.:

The action is for a partnership accounting. January 1, 1900, the three parties formed a copartnership for the purpose of carrying on a lumber business. They purchased and lumbered timber lands, manufactured the timber into lumber and sold it at wholesale and retail. Each agreed to contribute one-third of the capital and to share alike in the profits and losses. There are other details unnecessary to state.. In 1906 the firm sold out to a third party for $25,000 and went out of business.

The answer admits the copartnership and that the firm continued in business until 1906 when it sold out for $25,000 and “ that the defendant as a member of said firm received the same and has not accounted for the same, but has used the.greater part of the said money in payment of the debts of said firm.” The answer also admits “ that the defendant did substantially all the selling, handled a large part of the receipts, paid out the larger part of the moneys of said firm and kept all the books and accounts of said firm during the latter part of its continuing in business and to a large extent acted as manager of the business of said firm.” The right of the plaintiffs tó an accounting, therefore, stands admitted by the answer.

The defendant seeks a bill of particulars of the 5th, 6th, Ith, 10th and 12th paragraphs of the complaint. These paragraphs allege that the defendant wrongfully and unlawfully took partnership capital, lumber and building material and used the same for his own purposes, and used money in payment of fictitious notes and otherwise used partnership money and property without accounting for the same. Deféndant demands minute particulars of these allegations.

Those paragraphs of the complaint are- clearly immaterial and unnecessary to the cause of action alleged. Without them plaintiffs could prove the same facts .under the other allegations of their complaint. They do not stamp the action as one in tort or affect the plaintiffs beneficially or the defendant prejudicially. They are merely surplusage. Had defendant made an appropriate motion to strike those paragraphs from the- complaint, such motion would be entitled to serious consideration. But the court should not order a bill of particulars as to allegations clearly immaterial, and which neither benefit nor prejudice either party, and: which, if omitted from the complaint, would, nevertheless, be provable under the other allegations appropriate to a partnership accounting.

The order should be affirmed, with ten. dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  