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CIVIL PROCEDURE REPORTS.
WHITHERS, APPELLANT, V. TOULMIN, RESPONDENT.
CITY COURT OF NEW YORK, GENERAL TERM,
Bills of particulars— When should be verified
Where an account, a further account, or a bill of particulars is required
to be served, it must be verified if the pleading is verified. In construing any part of a law, the whole must be considered ; the
different parts reflect light on each other, and, if possible, such con
struction is to be made as will avoid inconsistency. (Decided September 30, 1887.)
Appeal by plaintiff from an order of the special term setting aside a judgment entered by default, and from an order requiring the plaintiff to serve a further bill of particulars. *
This action was commenced on April 23, 1887, and an amended complaint, which was duly verified, served May
* The opinion reported considers the first of these appeals (which were taken together) only.
Whithers v. Toulmin.
12, 1887, in which was set up a cause of action for services alleged to have been rendered by the plaintiff for the defendant as broker in negotiating for and procuring loans upon certain property situate in the city of Brooklyn, which services were alleged to be worth the sum of $160. On June 7, 1887, an order was made by the special term of this court directing the plaintiff to serve on the defendant's attorney, within three days from that day, “a bill of particulars of the services alleged in the amended complaint herein, and that the defendant have two days after the service of said bill of particulars in which to serve his answer to the amended complaint, which order was duly served upon the plaintiff's attorney on the same day. On June 9, the plaintiff's attorney served an unverified bill of particulars, which the defendant's attorney forth with returned with an indorsement stating that it was returned because not verified. On June 13, the defendant not having served an answer, the plaintiff entered judgment by default, and served notice of retaxation of costs; and the defendant on the following day procured an order to show cause why the default should not be opened and the defendant have such other and further relief as may be just. This motion was granted at special term and this appeal thereafter taken by the plaintiff.
Horace Secor, Jr. (John, T. Cornell, attorney), for the plaintiff-appellant.
Defendant was not entitled to a verified bill of particulars. Section 531 of the Code relates to accounts, and also to bills of particulars, and, while their object is substantially the same, the practice in regard to them differs. With the exception of the last sentence, the entire section relates solely to obtaining a copy of the items of an account, which, if the pleading is verified, must also be verified. There is no authority, statutory or otherwise, to the effect that a bill of particulars must be verified.
Whithers v. Toulmin.
The defendant is not called upon to answer the bill of particulars, which forms no part of the record, but merely to answer the complaint, which is already verified. Kneiss v. Seligman, 5 llou. Pr. 425. The particulars are considered as incorporated with the already verified complaint. Dwight v. Germania Life Ins. Co., 84 N. Y. 493. No verification appears in 2 Abb. Forms, p. 186, to a bill of particulars, nor any allusion to one in 2. Wait Pr. 350. Furthermore, even when a bill of particulars is insufficient, the party should apply for a further bill and not return the one served. Stanley v. Millard,
v 4 Hill, 50. The same is true where an improper account is served. Code Civ. Pro. $ 531. Plaintiff having complied with the order, and properly entered his judgment.
Edgar A. Hutchins, for defendant-respondent.
The order of June 16 was properly granted; the default was improperly taken; the time to answer had been extended to two days after service of a bill of particulars. The paper served was not a bill of particulars as required by the Code, for it was not verified. Section 531 of the Code of Civil Procedure expressly requires the bill of particulars to be verified if (as in this case, the complaiut is verified. It was, therefore, properly returned, and the plantiff was at fault, and not the defendant. Hoag v. Weston, 10 N. Y. Civ. Pro. 92.
An examination of section 531 of the Code of Civil Procedure shows that “bill of particulars” in the last clause, and “account” in the earlier portion, refer to the same thing. If this is not so the court is nowhere given authority to order a bill of particulars of what appellant calls, by way of distinction, an “account,” except in cases where one has been served without an order and a “further” account is asked for. And yet the courts are continually directing bills of particulars of accounts (in a book-keeping sense) as well as of other claims. The decisions in regard to bills of particulars use the words
Whithers v. Toulmin.
"account” and “bill of particulars” interchangeably. For example, in Gee v. Chase Manufacturing Company, 12 Hun, 630, the claim sued on was an account of several items. The appellant had been ordered to furnish a more detailed statement. The general term in its opinion calls this a bill of particulars, using that phrase as covering all kinds of claims, and including the account of items. In other words, the last clause of section 531 merely gives the court a right otherwise not conferred) to order what the former portion of the clause has provided may be demanded. I presume it is for this reason that neither my adversary nor myself has been able to find a case bearing on the question of verification. The clause requiring it is so plain that it has never been disputed.
PER CURIAM.—[McAdam, Ch. J., and Hall, J.]-If the items of an account are delivered under section 531 of the Code, they must be verified if the pleading is verified. That section expressly so provides. It also authorizes the court to direct"a further account” or a “bill of particulars” of the claim of either party to be delivered to the adverse party, and is silent as to whether such further account or bill of particulars should be verified or not. It is elementary that in construing any part of a
. law the whole must be considered; the different parts reflect light on each other, and, if possible, such a construction is to be made as will avoid any inconsistency. Effect must be given to every part to make the whole harmonious. It will be implied, therefore, that the Legislature intended to make the system uniform, and that when it required an account to be verified it intended that a further account, if ordered, should be verified also, and intended the same formality in regard to the bills of par. ticulars, for what is fairly implied in an act is as much granted as what is expressed.
According to these just rules of interpretation which give effect to the spirit and intent of the section under