
    Henry Thoesen, Resp’t, v. Thomas D. Crowe, Appl’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed May 16, 1890.)
    Bill or particulars.
    • In an action for the price of goods sold the answer alleged that divers articles had been returned to and accepted and retained by plaintiffs; that defendant never purchased or received divers articles mentioned in plaintiffs’ bill of particulars and that defendant had paid more than the price of the goods alleged to have been delivered. Held, that defendant could not be required to serve a bill of particulars indicating what articles in plaintiff’s bill of particulars he was willing to admit had been delivered to him, but could only be required to serve a bill stating the articles declined and returned.
    Appeal from an order directing the defendant to serve a bill of particulars.
    
      Jacob L. Haines, for appl’t; Howard Van Burén, for resp’t.
   Daniels, J.

The action was brought to recover the price of goods sold and delivered by the firm of Thoesen & Uhl to the defendant The plaintiff alleged himself to have acquired the interest of his copartner in the demand, and a bill of particulars of the goods forming it was served.

The defendant’s answer stated that divers articles in the bill of particulars were returned to the firm, _ which they accepted and retained, and that the defendant never purchased or received from the firm divers articles of merchandise charged in their bill of particulars. And the order from which the appeal has been brought directed the defendant to serve a bill of particulars of the articles in this manner referred to in the answer and so far the order seems to have been entirely right.

It was further averred in the answer that the defendant had paid the firm more than the price of the goods alleged to have been delivered to him. Of these payments a bill of particulars had been served, and that fact is stated in the order, but the defendant was directed to serve a bill of particulars of the amounts and names of the articles which are stated in the defendant's answer to have been sold by the firm to him. This clause of the order was entirely unnecessary, and it had no substantial support from anything appearing on the hearing of the motion.

The defendant was not bound to make any statement to the plaintiff indicating what articles in the bill of particulars he was willing to admit the firm had delivered to him. Goddard v. Pardee Medicine Co., 52 Hun, 85; 22 N. Y. State Rep., 540. All that he •could be required to do was to serve a bill of particulars of the articles declined and returned to the firm. This last direction ■contained in the order should be reversed and set aside, and the residue affirmed, without costs of the appeal to either party.

Yan Brunt, P. J., and Brady, J., concur.  