Dudley v. Brinckerhoff.

694. The effect of his bill of particulars was to restrict the proof and limit the recovery or defense to what is stated in it. Stevens v. Webb, 4 N. Y. Civ. Pro. 64. A bill of particulars has the effect to restrict the proofs and limit the recovery to the matters set forth in it. It is regarded as an amplification of the pleading to which it relates, and is to be construed as forming a part of it. Bowman v. Earle, 3 Duer, 691; Dwight v. Germania L. Ins. Co., 84 N. Y. 493, 506.

Second. A party must set forth in his pleading a claim for a sum exceeding $50, and demand judgment for the same. Code Civ. Pro. § 3086. In this case, the defendant does not demand judgment for any amount.

Walter C. Anthony, for defendant-respondent.

Plaintiff's motion to dismiss the appeal was properly denied. If the amount "demanded by either party in his pleadings exceeds $50," the appellant is entitled to a new trial in the county court. The defendant claimed an off-set of $55. His bill of items, it is true, only disclosed a claim of $50. But a bill of items is not a part of the pleadings; it merely makes the statements of the pleadings more definite and certain. Farcy v. Lee, 10 Abb. Pr. 143; Smith v. Hicks, 1 Wend. 48, and cases there cited. Even if the defendant was not entitled to a new trial, his appeal could not be dismissed for that cause. He might be limited to an argument of the legal questions presented by the return. Matteson v. Hall, 64 How. Pr. 515; Harvey v. Van Dyke, 66 Id. 396.

DYKMAN, J.-This action was commenced in a court of a justice of peace, where it was tried, and where the plaintiff recovered a judgment for $48.50.

The defendant appealed from that judgment to the county court of Dutchess county, and in his notice of appeal demanded a new trial in the appellate court. Thereupon the respondent moved in the county court to

Dudley v. Brinckerhoff.

dismiss the appeal because the sum for which either party in his pleadings demanded judgment did not exceed $50. That motion was denied, and a new trial was had, and the complaint of the plaintiff was dismissed at the close of his case, for a failure to establish a cause of action against the defendant. Now the plaintiff appeals from the judgment entered against him and from the order denying his motion to dismiss the appeal.

The appeal from the order must fail because the appeal was perfected by the service of a sufficient and regular notice of appeal, and nothing more was requisite to transfer the cause to the county court and vest that court with jurisdiction over the same. (Code Civ. Pro. § 3046). What the defendant could do in the county court after reaching there with regularity and safety is quite another question.

The demand for a new trial in the appellate court, contained in the notice of appeal, did not alone secure that remedy. The appellant was not entitled to a new trial, unless the sum for which judgment was demanded by either party in his pleadings exceeded $50.

By a refer

ence to the pleadings, it is found that the plaintiff demanded judgment against the defendant for $45, with costs; and the defendant answered by denying the complaint and stating a counter-claim for $55, and making no demand for any judgment. Then he submitted a bill of items for $50. Neither party, therefore, demanded judgment for a sum exceeding $50, and the defendant, as a consequence, was not entitled to a new trial in the county court (Code Civ. Pro. §3068).

The case was also overtaken by an error at its final conclusion.

The action was for the recovery of the value of seed wheat, and the direct testimony of the plaintiff was that he sold the wheat to the defendant, M. V. Brinckerhoff, and that it went on his farm, and was taken by his team and his men. Upon his cross-examination, it appeared

Dudley v. Brinckerhoff.

that the wheat had been charged to James B. Brinckerhoff, Jr., the defendant's son. Upon his re-direct examination, the plaintiff testified that the accounts of the farm were kept in that way, and the same were settled by the defendant once a year, and this is upon the record:

"Redirect: In former years, before James occupied this house, some other man occupied that house, and the account with the farm was kept in the same way on my books.

"Question. And settled by Matthew V. B. Brinckerhoff? Objected to as immaterial and improper. Objection sustained. Defendant excepts.

When

The exclusion of this evidence was erroneous. it appeared that the plaintiff had charged the seed wheat to James instead of the defendant, a burden was laid upon him to explain that apparently inconsistent act. Unexplained, the charge tended to show that the sale was made to James; but if the charge was made in pursuance of a purpose recognized by the defendant to keep the accounts. of his farm separately, the proof of that fact was very material, and might well have afforded an explanation which would have been satisfactory to the jury, especially in view of the undisputed fact that the seed wheat was used upon the defendant's farm, and the undisputed testimony of the plaintiff that the sale was made to the defendant.

It appears from the record that the complaint was dismissed upon the ground that no cause of action had been established against the defendant. The plaintiff excepted, and asked permission to go to the jury upon the evidence. That motion was also denied, and the plaintiff excepted. The granting of the motion to dismiss, and the refusal of the permission to go to the jury, were both erroneous. There was evidence sufficient to carry the cause to the jury, and to have sustained a verdict in favor of the plaintiff, if such a verdict had been returned.

The judgment must be reversed, with costs.

BARNARD, P. J., and PRATT J., concurred.

VOL. XIII.-7.

Costs-When judgment cannot be entered for those awarded on determining demurrer to pleading.

Costs awarded on determining a demurrer to a counter-claim set up in an answer where other issues remain to be disposed of cannot be assessed or enforced until final judgment is rendered upon the whole issue, and it is error upon such determination to enter judgment. for costs.* Robinson v. Hall (35 Hun, 214); Armstrong v. Cummings (22 Id. 570); followed.

(Decided July 1, 1887.)

Appeal by plaintiff from an order vacating a judgment on the ground that it was irregularly entered.

The facts are stated in the opinion.

Henry Wehle (Wehle & Jordan, attorneys), for plaintiff-appellant.

The irregularity in the judgment, assuming it to exist, called for the correction, not for the vacating of the judgment. The plaintiff is entitled to a judgment: as the costs awarded were awarded absolutely, the judgment as entered is substantially the same in force and effect as an interlocutory judgment. See Code Civ. Pro. § 3232.

* See Doelger v. O'Rourke, 12 N. Y. Civ. Pro. 254, and Note on the Award of Costs on Determining Demurrer where there is also an issue of Fact, 10 N. Y. Civ. Pro. 88.

Oesterriches v. Jones.

The case of Armstrong v. Cummings, cited by the defendant's counsel, arose under a demurrer which was overruled with leave to answer over on payment of costs. The plaintiff proposed to pay those costs by setting off costs which he had recovered in another action against the defendant, and the court simply held that the defendant could not defeat this right of set-off by assigning the costs to a stranger. No judgment had been entered in that case, nor could a judgment be entered in that case.

J. Hampton Dougherty (Smith & Dougherty, attorneys), for defendant-respondent.

The order vacating the judgment was proper. No judgment could be regularly entered against the defendant for costs until the entry of the final judgment in the action. Obviously, as there were issues raised by the other defenses in the answer, the action was not in such a condition that judgment could be entered. The precise point of this appeal was decided in Bucking v. Hauselt, 9 Hun, 633; in Robinson v. Hall, 35 Id. 214, and in other cases. In Bucking v. Hauselt, supra, as in this action, the plaintiff demurred to certain counter-claims set up in the answer. Judgment was ordered upon the demurrer for the defendant, who thereupon entered a judgment in his favor for the amount of the counter-claims. Held, that the judgment was irregular and should be set aside; that the case was not in a condition for judgment as long as material issues joined by the answer were left undisposed of. In Robinson v. Hall, supra, Held: "The issues of law raised by the first and third grounds of demurrer remain undetermined, and, therefore, no final judgment could be entered (Code Civ. Pro. § 1021; Masters v. Barnard, 6 How. Pr. 113; Belknap v. McIntyre, 2 Abb. Pr. 366; Bucking v. Hauselt, 9 Hun, 633), and the entry of judgment by defendant for costs was irregular." So in Armstrong v. Cummings, 22 Hun, 570, it was held that costs awarded upon sustaining a demurrer are not inter