
    ALEXANDER DOWDNEY, Plaintiff and Respondent, v. HENRY VOLKENING, Defendant and Appellant.
    I. Bum OB' PABTICULAKS.
    1. When order for, not necessary.
    
    
      a. When the action or defense is on an “ account.”
    1. Account, definition of, in this connection, a. It means the entry of debts and credits, in a book or upon paper, of things bought and sold; of services performed ; with date, and price or value. It may be of a single entry, or of a great number, or for a short or long period.
    1. A bill of particulars of such an account may be obtained on a mere demand. An order is only necessary where the bill furnished in pursuance of the demand is insufficient.
    2. When order necessary.
    
    
      1. In all cases where the action or defense is not upon an account, as abone defined.
    
    1. Consequently, if a plaintiff desires a bill of particulars of damages, alleged in the defendant’s answer to have been sustained by him by plaintiff’s breach of contract, he must apply to the court for an order therefor.
    1. Defendant is not bound to furnish a bill of particulars of such damages, on a mere demand.
    
    3. Demand made in an improper case.
    
    1. Remedy of party affected thereby.
    
      A motion at special term to strike it out is proper.
    Before Monell, Ch. J., Curtis and Speir, JJ.
    
      Decided May 2, 1874.
    Appeal from an order.
    The action is to recover upon a special contract a stipulated price for excavating and removing rock and earth from the defendant’s property.
    
      The defendant, for a first defense, made a general denial.
    For a second defense, the defendant alleged that in the month of August, 1872, an agreement was made between the plaintiff and' defendant, whieh was not reduced to writing, whereby the ■ plaintiff agreed to excavate the rock and earth from eight full lots of land owned by the said defendant. That by such contract such excavation was to be made of the uniform depth of ten feet below the curb of Fourth-avenue, and to extend the whole depth of one hundred feet from the front to the rear of the lots, and that the said plaintiff was to remove all the said excavations of the said rock and earth out of and from the said lots, together with all the rubbish of every description, except that the plaintiff was to leave a sufficient quantity of good, useful, • suitable and well trimmed stones from said excavated rock to make the foundation walls of eight first-class houses, to be erected by this defendant upon the said lots. And that it was also provided by the said agreement, that the plaintiff should entirely finish and complete said contract, and complete such excavation and removal, and in all thinfis perform his said contract by January 1, 1874, and that the defendant was by the said contract, upon the same being fully completed according to the terms thereof, to pay to the plaintiff therefor the sum of five thousand five hundred dollars, which sum the plaintiff agreed to do the work above mentioned for, according to the terms of the contract. That the plaintiff has failed to perform the agreement on his part. That he has not excavated the rock and earth from the said eight lots to an uniform dépth of ten feet below the curb of Fourth-avenue, that he has not removed the rock and earth therefrom, according to the contract, that he has failed to leave upon the premises a sufficient' quantity of well trimmed stone to build foundations for said houses, although there was plenty of stone- there. That the plaintiff has left a large amount of rock and dirt on the lots. By reason of which failure of the plaintiff to perform said contract, the defendant has sustained damages to the amount of five thousand dollars, for which he demands judgment.
    The plaintiff replied to the answer, taking issue upon the allegations therein.'
    The plaintiff then served upon the defendant’s attorney the following notice:
    
      “Sir-: Please take notice that the defendant is hereby required to serve upon me a bill of particulars of the damages claimed to have been sustained by him herein, and set up as at counter-claim in his answer herein.’*
    The defendant moved at the special term for “an order striking out the plaintiff’s demand of defendant of a bill of particulars.”
    The motion was denied, and the defendant appealed.
    
      Nelson Smith, attorney, and of counsel for appellant, urged:—I.
    The court erred in denying defendant’s motion to set aside plaintiff’s demand for a bill of particulars. 1. By the Code, § 158, a party may, when an account is alleged in adverse pleading, demand a bill of particulars, and the adverse party is obliged to serve it, under penalty of being precluded from giving evidence thereof at the trial. 2. In all cases the court may order a bill of particulars to be furnished by either party. 3. hfo account is alleged in defendant’s answer. There are various definitions of an “account.” Bouvier defines it to be “the statement of two. merchants or others, who have dealt together, showing the debits and credits between them.” Webster says it is “a statement of' debts and credits in pecuniary transactions, and also of other things, subject to a reckoning or review, as to keep one's ‘account’ at the ‘bank.’ ” Worcester terms it “A register of debts and credits, or of receipts and expenditures, a computation applied to sums of money.” Clearly, defendant’s answer does not aver an account. 4. In moving to set aside the plaintiff’s demand for a bill of particulars, defendant pursued the proper course. He was in this embarrassing situation: if, acting under the advice that plaintiff had no right to demand a bill 'of particulars, he served none, and upon the trial the court should hold that he ought to have served one, he would incur the heavy penalty of being precluded from giving any evidence of his damages (Code, § 168). The question is purely one of practice, and is at some time ,or other to be decided by the court. Preliminary questions, and questions of practice, should be brought up on motion prior to the trial (Clark v. Fitch, 2 Wend. 459; People v. Denison, 17 Id. 312 ; Daniels v. Patterson, 3 Comst. 47; Union Bank v. Torry, 5 Duer, 626). Among the different kinds of irregularities one is where any proceedings are had which are not warranted by the particular circumstances of the case, according to the practice of the court, or for which there is no foundation (Burrill's Pr. vol. 1, p. 473 ; De Peyster v. Warne, 2 Cai. 45). The remedy in such a case is to apply to the court to have the proceeding set aside (Burrill's Pr. vol. 1, 472 ; Harris v. Mason, 10 Wend. 568).
    
      Alex. Thain, attorney, and of counsel for respondent.
   By the Coubt.—Moheix, Ch. J.

The Code (section 158) provides two modes of obtaining a bill of particulars, each, however, applicable to a distinct class of cases. The first relates to an action upon an account, and the second to a claim of a party in all other actions.

In the first class of actions it was not necessary to set forth in a pleading “ the items of an account therein alleged,” but the adverse party may demand, by a notice in writing, a copy of the account. If the account is not furnished, the party may be precluded from giving evidence thereof.

If the account furnished is defective, the court may order a “further account.”

The Code has not extended the right to a bill of particulars, to other actions than those in which it could formerly be obtained. Under the former practice, as partly regulated by the statute, the court had the power to order a bill in nearly, if not every, species of actions. It was not confined to the action of assumpsit, but in-included debt and covenant. So in actions ex delicto, such as trover (Humphry v. Cottleyou, 4 Cow., 54), escape, trespass de bonis asportatis, case for negligence, and the like (1 Burrill Pr. 430). And by statute, in action of ejectment (2 Ben. Stat. 341, § 16).

The only essential change made by the Code, is in the manner of obtaining the bill, in a class of cases.

In all cases, under the former practice and statute, an order of the court was required (1 Burrill Pr. 430).

How, in actions when the items of an account are not set out in a pleading, they may be obtained by a mere demand in writing.

In all other cases, an order must be procured.

In prescribing a difierent mode of obtaining the bill, 'in certain cases, the codifiers must have intended to give to the word “account” some definite and separate meaning. So that the items of an account could be obtained by a mere written demand, and without an order.

The most usual cases for bills of particulars before the Code, were actions of assumpsit, for work and labor ; goods sold and delivered, and the like. In such cases the declaration was general. And although the court could, as we have seen, order a bill in other actions, it was in all cases wholly discretionary, and never a matter of right.

The items of work and labor, and of goods sold and delivered, were frequently numerous, and ran through a large period; and there was more need for the particulars, both as to time and amount of such items, than in other actions; and it had become a matter of course to order the bill in all such cases.

The word “ account,” in its comprehensive, sense, of course, signifies many things; but in its mercantile sense, and I may say its legal sense as applied to actions, it means the entry of debts and credits in a book"or upon paper; of things bought and sold, of services performed, with date, and price or value. It may be of a single entry or of a great number, and for a short or long period.

In the sense, therefore, that’an “account” is the aggregate items of charges, more or less, for services rendered or goods sold, it is tó be presumed that the codifiers intended to confine its meaning to the class of cases in which, theretofore, it was most usual, as well as most necessary, that the particulars of the demand or account should be furnished. For unless some such limitation is put upon it, not only can the word, by construction, be extended to.the “ account” given in a pleading of the facts constituting a caus'e of action or defense; but it. would as well render the latter part of the section purposeless and meaningless.

• Unless, therefore, the action is upon or for the recovery of such an account, as,, it seems to me, must have been intended by the codifiers, namely,' an account containing one or more items for work, labor, services, goods sold, and the like, a bill of particulars cannot be obtained by a mere demand in writing.

In the view I. have, taken, therefore, the plain tiff could not obtain a bill of the particulars of the “ damages” set up as a counter-claim in the defendant’s answer.

The damages were for the breach of a special contract, and were unliquidated; and there could not be any items of an account, within the meaning I have endeavored to show was intended in the Code.

If I am correct, then, as the plaintiff could not procure a bill of particulars by a mere demand in writing, it follows, that the demand made in this case was a nullity.

Notwithstanding that, however, the question is presented by this appeal, whether a party can rest securely upon the invalidity of the demand ; or whether he must not himself move to have the demand declared a nullity, as was done in this case.

The Code provides, as a penalty for neglecting or refusing to furnish a bill of particulars, after demand, when the pleading does not set forth the items of an account, that the party “5e precluded from giving evidence thereof.”

When or in what manner he is to be precluded is not stated. It may no doubt be done, on motion, at the special term. May it not also be done at the trial %

In Kellogg v. Paine, 8 How. Pr. 339, the practice was stated to be unsettled, but it was regarded as the better or more convenient practice to have the question settled before the trial, for the reason that “it might operate as a surprise upon the party to meet an objection to the sufficiency of his account for the first time at the trial.”' The former practice required the order precluding the evidence to be obtained before trial (Graham Pr. 519). *

As the defendant claims that he is not bound to furnish a bill of particulars in this case at all, upon the mere demand of the party, and without an order of the court, he had the right to have that question settled before the trial, and Ms motion to set aside the demand was therefore regular and proper. And as the plaintiff’s practice is not sanctioned by the Code, the defendant’s motion ought to have prevailed at the special term, and the defendant required to procure an order under the last part of section 158 of the Code.

The order appealed from should be reversed, with costs.  