
    Samuel H. Harris, Appellant, v. Charles A. Drucklieb, Respondent.
    First Department,
    October 23, 1908.
    Pleading—bill of particulars — defense of payment,
    A plaintiff, suing- to recover the purchase price of stock, is entitled to a bill of particulars of the consideration which the defendant, alleges was received and accepted in full payment, where he makes affidavit that he has no knowledge of receiving any consideration, and the defendant does, not disclose the same.
    Appeal by the plaintiff Samuel H. Harris, from an order of'the Súpreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York, on the- 1st day of July, 1908, denying' the plaintiff’s motion fór á bill of particulars of the separate defense set up in the answer.-
    
      Louis O. Van Doren, for the appellant.
    
      George E. Blackwell, fór the respondent.
   Ingraham, J.:

The action- was brought to recover the purchase price of twenty-five shares of stock of á New York corporation which the complaint alleged that the plaintiff at his special instance and request sold to the defendant, and that the reasonable value of the stock was St,500, for which sum the plaintiff asks judgment. The answer admits the sale and delivery of the stock and denies the allegations of the complaint as to its value; and for a separate defense alleges that the twenty-five shares of capital stock of the Hew York Cigarette Machine Company were sold and delivered by the plaintiff to the defendant for a valuable consideration, which consideration prior to the commencement of the action was received and accepted by the plaintiff from the defendant as full payment for such stock. The plaintiff made a motion for a bill of particulars as to the nature, character and description of the consideration which was received and accepted by the plaintiff for the stock. The motion was made upon an affidavit in which the plaintiff swears that he is ignorant of what it is that the defendant refers to as constituting the consideration for the stock. In answer to .this the defendant alleges that as the transaction occurred between the plaintiff and the deféndant, the plaintiff has full knowledge thereof and has full means of information, but he does not state in his, affidavit what the consideration was. I think the plaintiff was entitled to a bill of particulars stating what consideration it was that the defendant paid tu the plaintiff for the stock in question. The plaintiff swears that he has no knowledge of having received any consideration for the stock and the defendant carefully refrains from stating it. It is not an answer to such an application to show that the plaintiff has knowledge of the fact sought to be shown, as the party has the right to have the claim of his adversary distinctly stated so that he will not be surprised at the trial and his adversary will be limited to the exact claim of which his opponent has notice.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the bill of particulars ordered as above stated, with ten dollars costs of motion.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and 'motion granted as stated in opinion, with ten dollars costs. Settle order on notice.  