#### William Fullerton, plaintiff, *vs.*Willis Gaylord, defendant.

1. A defendant is not entitled, of course, to a bill of particulars, in all cases.

2. Section 158 of the Code prescribes in what cases, and how, a bill of particulars may be obtained, and draws a broad distinction between one class of actions, and all other actions. In that class of actions the defendant may demand a copy of the account; while in all other actions a bill of particulars can only be obtained by special order of the court.

3. The class of actions in which the defendant may, of course, demand a bill of particulars, consists of those where the cause of action alleged in the pleading is an *account*against the adverse party, the items of which have not been set forth in the pleading. In all *other*cases, the court may *order*a bill of particulars to be furnished.

*5524. Where the gist of the cause of action stated in a complaint was that the defendant made a certain agreement with the plaintiff’s assignor; that he had broken that agreement, by not delivering a specified number of bonds which he had received, and should, under that agreement, deliver to the plaintiff; and the agreement, the receipt of the bonds by the defendant, the number of bonds which the plaintiff claimed, and a particular description thereof, and the refusal of the defendant to deliver them, were all fully set forth; *Held*that, being thus set forth, a bill of particulars could not be demanded as of course. . z

6. In an action for an account and settlement of moneys and bonds received by the defendant from a corporation, upon a claim of the plaintiff against said corporation, under an agreement to procure a settlement of such claim and pay over to the plaintiff a specified portion of the proceeds, it is wholly immaterial what such claim against the corporation consisted of, or how it arose. The defendant is therefore not entitled, of course, to a bill of the particulars of such claim.

6. It is not the office of a bill of particulars- to furnish a defendant with facts whereon to found an affirmative defense in his behalf; but simply, when he is called on to pay an account stated generally in the complaint as amounting to a certain sum, to give him the particular items of that account, so that he may determine as to the correctness of the account, as to what items he will admit, and as to what he will insist on the plaintiff’s proving affirmatively ; and also that he may know what he will have .to contend with, on •" the trial; and also that the general pleading, aided by the bill of particulars, will, in the event of a subsequent action between the same parties, show what items were disposed of in the former action.

7. Under the provisions of the Code authorizing the examination of parties to actions before trial, the testimony of a party may be taken before issue joined. The right to such an examination is absolute, and a refusal thereof is not in the discretion of the court.

8. The pendency of a motion to make the complaint more definite does not, of itself, prevent the plaintiff from proceeding with the examination of the defendant. Consequently its non-decision, or the non-entry of the order upon.the’ decision, can have no effect on the plaintiff’s right to proceed.

9. A judge having granted an order for the plaintiff to show cause why his proceedings on the examination of the defendant as a witness should not be stayed until the hearing and decision of a motion to make the complaint more definite, with a temporary stay, has the power to vacate it, *ex pmrte;*and if he subsequently makes an order staying the examination of the defendant for ten days, unless a bill of particulars shall be sooner served, the making of such order will be regarded as an *ex parte*vacatur of the stay previously granted.

(Before Jones, J., at Special Term,

May 14, 1867.)

*553The complaint alleges that a certain corporation called the Atchison and Pike’s Peak Railroad Company became indebted to one Luther 0. Challis for moneys paid, laid out and expended for said corporation, and work, labor and services rendered to it and at its request, and for and by reason thereof the said Challis became and was entitled to receive from said company, for and on account thereof, a large sum of money; and that about the same time the defendant and one Pomeroy had, or claimed to have, demands against said company. It then sets forth an agreement between said Challis and the defendant, whereby it was agreed that the defendant should and would negotiate with said company, and if possible procure a settlement and adjustment of the claims of said Challis, and of the claims of himself and said Pomeroy, and that of what should be recovered and collected by the defendant of the said company, either in money or obligations or securities, one third should belong to, and be the property of, said Challis, and should be paid over and accounted for to him. It then alleges that under said agreement the defendant collected from said company a certain sum of money, which he alleged to be one third thereof, and that said defendant likewise received from said company, under said agreement, upon the aforesaid claims and demands, 284 bonds made and issued by said company, each for $1000, with interest coupons attached, which were secured by a first mortgage on the property of the company. It then alleges that the defendant delivered to said Challis ten of these bonds, and promised to deliver seventy-eight more, making one third of the whole; but that he has neglected and omitted to deliver the said seventy-eight bonds, although requested so to do. It then alleges an accounting between the defendant and Pomeroy, as to Pomeroy’s share of the bonds and money. It then alleges an assignment by Challis to the plaintiff, and that *554since such assignment the plaintiff has requested the defendant to deliver said seventy-eight bonds, or to account to the plaintiff in respect thereto, and that the defendant neglects and omits so to do. It "then alleges that the'plaintiff does not know whether the defendant still has possession of said bonds, or not; and further alleges that if the defendant still has possession of the bonds, the plaintiff is apprehensive he will part with and dispose thereof.

The prayer is in the alternative; either for damages to the amount of |100,000, or if the defendant has not parted with the bonds> then for the delivery thereof to the plaintiff, and for such damages as the plaintiff may be entitled to in the premises.

The plaintiff served on the defendant a summons requiring him to attend at the chambers of the court, on the 11th of April, 1867, to be examined as a witness in the cause. The proceedings on this summons were adjourned until the 13th of April. On the 11th of April, 1867, the defendant served -the plaintiff with notice of a motion to-be made on the 22d of April, 1867, for an order directing the complaint to' be more definite and certain.in the following respects:

1st. So as to state particularly the several amounts of money alleged to have been paid, laid out and expended by said Challis for said company, and for what specific purposes; and particularly what work, labor and services were rendered by said Challis for said company, and at what times, and the several amounts claimed by him from said company fiar the same, and the time when so claimed,

2d. So as to state definitely the time when the contract between said Challis and the defendant was made.

3d. So as to state definitely the time when the assignment to the plaintiff was made-.

*555On the 12th of April the defendant obtained an order requiring the plaintiff to show, cause, on the 16th of April, why the examination of the defendant should not be postponed until after the hearing and decision of the motion to make the complaint more definite.

| The defendant’s motion to make the complaint more definite was, after argument, denied, on the 3d day of May, 1867, and an. order, dated May 4th, 1867, was directed to be entered, but was not in fact entered until-May 7th, 1867.

On the 3d day of May, the same justice who heard and decided the defendant’s motion to make the complaint more definite, and who also heard the motion for a stay of the defendant’s examination, made an order whereby, after reciting the service of the summons on the defendant to appear and testify, and that said examination had been adjourned pending the above mentioned motion of the defendant, and that said motion had been denied, he ordered the said examination to proceed, on a certain day, at the chambers of this court, and that the defendant then and there appear to testify, as required by said summons. On that day the defendant appeared, and without raising any objection, was sworn, and the proceedings adjourned to May 8th. At the time the defendant was so sworn, he had not the benefit of the advice of his attorney or counsel, (they both being absent from the city,) or of any lawyer who was cognizant of the proceedings had in the action.

Prior to the 8th of May, and subsequent to the 3d of May, the defendant served on the plaintiff a notice requiring the service on him of a bill of particulars. He then obtained an *ex parte*order staying such examination for ten days, unless a bill of particulars should be sooner served. A motion is now made to vacate this stay.

*556
      *Mr. Davison,*for the plaintiff.

*Mr. Woodruff,*for the defendant.

Jones, J.

Unless the defendant is entitled to a bill of particulars, he cannot have a stay for the purpose of having a bill served before the examination proceeds.

There seems to be some misapprehension on the subject of the right of a defendant to a bill of particulars. A defendant is not (as some suppose) entitled of course to a bill of particulars, in all cases.

Section 158 of the Code prescribes in what cases, and how, a bill of particulars may be obtained. By that section a broad distinction is drawn between one class of actions, and all other actions. In that one class of actions the defendant may demand a copy of the account; while in all other actions' a bill of particulars can only be obtained by special order of the court.

In this case no special order has been made. If then the action does not fall within the class in which the defendant may demand a bill, he is not entitled to it under his simple demand.

The class of actions in which the defendant may of course demand a bill of particulars consists of those where the cause of action alleged in the pleading is "an account against the adverse party, the items of which have not been set forth in the pleading. This is apparent from the language of the section, which is: “It shall not be necessary for a party to set forth, in a pleading, *the items of an account therein alleged;*but” (in case he does not set them forth, and there is no prohibition against his so doing if he sees fit) “ he shall deliver to the adverse party, within ten days after a demand thereof in writing, *a copy of the*account,” that is, of the *account alleged in the pleading.*The section then provides: “And the "court may *in all cases*
      *557
      *order*a bill of particulars of the claim of either party to be furnished.”

The complaint in this case, if it can be said to allege an account against the defendant, sets forth the items thereof. The gist of the cause of action is that the defendant made a certain agreement with the plaintiff’s assignor; that he has broken that agreement by not delivering a specified number of bonds which he has received, and should, under that agreement, deliver to the plaintiff. The agreement, the receipt of the bonds by the defendant, the number of bonds which the plaintiff claims, and a particular description thereof, and the refusal of the defendant to deliver them, are all fully set forth in the complaint Being thus fully set forth, a bill of particulars cannot be demanded as of course.

Judging, however, from the notice of the motion to make the complaint more definite, I apprehend that 'what the defendant desires are the particulars of the claim of the plaintiff’s assignor against the company. With this I think he has no concern. The statement in the complaint of the existence of that claim is mere inducement leading up to the contract. It is wholly immaterial what that claim consisted of, or how it arose. The defendant made a certain specific agreement, and this agreement he must perform irrespective of the nature or particulars or amount of the claim of the plaintiff’s assignor against the company, unless he can avoid that agreement by reason of fraudulent representations made by the plaintiff’s assignor. This may be the intention of the defendant, and he may desire to obtain other particulars for the purpose of enabling him to establish one of the elements of that defense. It is not, however, the office of a bill of particulars to furnish a defendant with facts whereon to found an affirmative defense in his behalf; but simply when he is called on to pay an account, stated generally in the complaint as *558amounting to a certain sum, to give Mm the particular items of that account, so that he may determine as to the correctness of the account; as to what items he will admit, and as to what he will insist on the plaintiffs proving affirmatively; and also that he may know what he will have to contend with on the trial, and also that the general pleading, aided by the bill. of particulars, will, in the event of a subsequent action between the same parties, show what items were disposed of in the former action/

' In the present case, unless the defendant puts in a defense of fraud, the court on the trial would not permit the plaintiff, nor allow the defendant, to enter into proof as to the amount or nature or particulars of the claim in question; and even if the defendant pleaded fraud, the plaintiff would not be bound to go into proof as to the nature, amount or particulars of that claim, but the defendant would be obliged to prove affirmatively, on his behalf, that the plaintiff made certain representations as to the claim, and then that such representations were false; in doing which he might, perhaps, be obliged to go into the particulars of the claim.

Whether the defendant intends to put in a defense of fraud, or whether such defense can- be sustained in law or in fact, I, of course, am unable to determine ; but if he does so intend, and is by this means seeking a discovery of facts bearing on such defense, he has pursued the wrong course.

In no aspect of the case can the allegation in the complaint, of a claim by the plaintiff’s assignor against the company, be regarded as coming within the words *“*account therein alleged,” contained in section 138. " .

By his notice • of motion to make the complaint more definite, the defendant ’desired to be informed as to the time wrhen a certain contract and an assignment were, *559made, and as he failed to obtain it on that motion we may presume he seeks to get it by a bill of particulars..

That motion was the proper course to pursue to obtain this information, but the judge who decided the motion determined that under the circumstances of the case he was not entitled to it. That decision cannot be interfered with here. Although he failed in acquiring the desired information by that motion, yet he cannot get it by a mere demand of a bill of particulars, because the bare statement of the time when an instrument or an agreement was made cannot be said to be items of an account, a copy of which is to be delivered on, demand.

The defendant’s counsel, however, claims that no. examination can be had until after issue joined. The case of *McVickar*v. *Ketcham,*decided at a general term of this court, (1 *Abb. N. S.*452,) decides this proposition against him.

It may be that, pending the examination, the court has power so to control it as to meet the various objections urged against the propriety of allowing such examination before issue joined. But whatever may be the power of the court to control and direct the course of such examination, the right to such examination before issue joined is declared by the general term of this court, in the above cited case, to be absolute, and a refusal thereof not to be in the discretion of the court.

The only remaining point urged by the defendant is that the order of May 3d, appointing a day for proceeding with the examination of the defendant,"and requiring the defendant to appear on such day for examination, was inoperative, because it was made before the order denying the motion to make the-complaint more definite was actually entered with the clerk. .

The pendency of that motion did not of itself prevent the plaintiff from proceeding on the examination; conse*560quently its non-decision, or the non-entry of the order upon the decision, can have no effect on'the plaintiff’s right to proceed.

But there was also an *ex parte*order made, requiring the plaintiff to show cause why the plaintiff’s proceeding on that examination should not be stayed until the hearing and decision of the motion to make the complaint more definite, with a temporary stay. The mere pendency of the motion for a stay did not affect the plaintiff’s right to proceed. 'If his right was affected at all, it must be by reason of the temporary stay contained in the order to show cause. How as to this: the motion to make the complaint more definite, and that for a stay of the plaintiff’s proceedings, came on to be heard together, before the judge who-granted the order to show cause why the plaintiff’s proceedings should not be stayed, with the temporary stay. He denied both motions, and" thereafter granted the order in question. He, having granted the stay, had the power to vacate it *ex parte;*and as he made this order with full knowledge of all the facts on which he ordered a stay, the making of the order must be regarded as an *ex parte*vacatur of the stay theretofore granted by him.

As there can be- no pretense that the plaintiff was guilty of any irregularity otherwise than by proceeding while under a stay, and as it has been shown -that the stay must be regarded as vacated, the defendant’s objection on this ground must fall.

The motion must be granted, with $10 costs; and if the proceedings for the examination of the defendant have not been kept alive by adjournment, he must attend at a time and place to be fixed, to be examined as a witness in the cause.