
    Mary K. Swan, Plaintiff, v. William J. Swan, Defendant.
    (Supreme Court, New York Special Term,
    June, 1904.)
    Bill of particulars — Not exactible by the plaintiff where the defendant pleads payment — Meaning of “claim,” in the last clause of Code Civ. Pro., § ssr — When a defense presents no question of the amount and an order for a bill should be refused.
    Where a defendant interposes to a complaint, stating two causes of action for moneys alleged to have been advanced, paid out and loaned by the plaintiff to the defendant, first, a general denial, and, as a second defense to both causes of action, payment, the plaintiff is not entitled to a bill of particulars of the payment.
    One construction of the word “claim,” used in the concluding clause of Code Civ. Pro., § 531, authorizing the court to make an order directing “ a bill of the particulars of the claim of either party, to be delivered to the adverse party,” in the case of a defendant, is the position he takes in his pleading as the reason why judgment should not go against him.
    A third defense interposed in the action, which was brought by a wife against her husband, alleging that the moneys covered by her first two causes of action were advanced, etc., by her under an ante-nuptial agreement made between the parties, to the effect that, after marriage, she would contribute her income, and he his earnings (whatever they might be) to support the family, and that he had fully performed this agreement upon his part by contributing his earnings, while adding strength to the answer and constituting a claim, does not entitle the plaintiff to an order for a bill of particulars of this defense and this because no question of amount is presented by the defendant’s allegations in the defense that he had contributed his earnings.
    Motion for a further bill of particulars.
    Edward S. Clinch, for motion.
    Edward S. Hull, opposed.
   Giegerich, J.

In this action, brought by a wife against her husband for a money judgment, three causes of action are set up in the complaint: First, for the sum of $3,875.69 for moneys advanced and paid out for the defendant’s account; second; for the sum of $953 for moneys loaned to the defendant, and third, for $1,000, being the value of a bond loaned by the plaintiff to the defendant and not returned by him. The answer first sets up a general denial, and as a second defense to the first and second causes of action, pleads payment, and, as a third defense to the same causes of action, alleges that, both plaintiff and defendant had been previously married, the plaintiff having two children and the defendant one, and that the plaintiff and her children had large means, while the defendant had no property of value and only a small income obtained from his earnings, and that, under such circumstances, the parties entered into an antenuptial agreement that the plaintiff would contribute her income in addition to the earnings of the defendant toward the support and maintenance of the plaintiff and the defendant and their respective children and the education of the children. This defense further alleges that since the time of the marriage the defendant has contributed large sums toward the support and maintenance of the parties and their children as aforesaid, amounting in the aggregate'to over $5,000, which sum was all that the defendant was able to contribute during the said time, outside his incidental and business expenses. In response to the plaintiff’s demand the defendant has heretofore served a hill of particulars, as follows: “To rent of apartment, $1,250; to household expenses, $2,075.18; paid to plaintiff for personal account, $928.75; paid to plaintiff for personal expenses and incidentals, etc., as per vouchers, $3,221.65; to cash paid to plaintiff, no vouchers (estimated), $2,000; total, $9,475.59.” As a matter of fact the attached itemized statement is a single list of many pages in length, and the only way in which it can be determined under which of the above headings such as “ rent,” “ household expenses,” “personal account,” etc., the various items fall, or are intended to he placed, is by the description of the item contained in itself, such as “ rent,” “ cash,” “ telephone,” etc. . Many of the items, however, do not hear upon their face anything which would show under which of the various headings they are intended to fall, and the plaintiff in her moving affidavit swears that she cannot pick out the items claimed to aggregate the amounts above mentioned, with the exception of the amount of rent. The defendant resists the motion on the ground that no bill of particulars whatever can be exacted in a case of this kind, because a defendant is not required to furnish a bill of particulars of payments made under the defense of payment, citing Barone v. O’Leary, 44 App. Div. 418, which authority supports his contention. The only remaining question is whether the third defense above outlined is of such a character as to warrant a bill of particulars. In Goddard v. Pardee Medicine Co., 52 Hun, 85, the court, in the prevailing opinion, said: “ The fourth defense in the answer is not affirmative in its character. It really amounts to nothing more than a denial of the plaintiff’s alleged cause of action. It adds no strength to the answer, and could be wholly stricken out without detriment to the rights of the defendant. Considering it, therefore, with reference to its legal effect, which is simply that of a denial, it cannot properly be regarded as setting up any such claim as to render it proper to require a bill of particulars.” The present case is clearly distinguishable from that one, as it does add strength to the answer and could not be wholly stricken out without detriment to the rights of the defendant, and answers the description laid down in Dwight v. Germania Life Ins. Co., 84 N. Y. 493, 504, of the tests which determine whether the claim is of such a character that a bill of particulars may be ordered, in which case it was said: “In our view the claim spoken of by that section, (meaning section 531 of the Code of Civil Procedure), where the case of a defendant is in hand, is whatever is set up by him as a reason why the action may not be maintained against him. The claim of the defendant, is that ground of fact which he alleges in his answer as the reason why judgment should not go against him. His claim, in the case,'is the position he takes in his pleading, based upon the facts he sets up, and the law applied thereto, why he should go without day.” But while the defense in question answers in its general character the requirements of the above description, it nevertheless lacks certain other elements necessary to warrant the ordering of a bill of particulars. B.oth sides have assumed that there was a question of amount presented by this defense, but such is not the fact. To be sure, the sum of $5,000 is mentioned, but this is incidental only, the essence of the defense being that the moneys mentioned in the first two causes of action were advanced or paid by the plaintiff in accordance with the terms of an agreement which the defendant has fully performed on his part, such performance depending, not upon his contributing $5,000 or any othei definite sum, but his earnings,” whatever they might be. This confusion may have arisen from the form of the bill of particulars voluntarily served by the defendant, which presents certain categories not based upon anything contained in the pleadings, and which, therefore, present false issues. The motion for a further bill of particulars should, therefore, be denied, but without costs.

Motion denied, without costs.  