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Cases

DETERMINED IN THE

APPELLATE DIVISION

OF THE

SUPREME COURT

OF THE

State of New York.

KURT M. LUNDBERG and Others, as Trustees in Bankruptcy of

FRANK S. DE RONDE COMPANY, Respondents, v. PHILIP DE RONDE, Appellant.

First Department, July 7, 1911.

Pleading - bill of particulars — renewal of motion — particulars of

account stated alleged to be inaccurate.

A prior order denying a bill of particulars is no bar to a subsequent motion

for a bill where a different state of facts is presented. Where a defendant, sued on an account stated, alleges as a separate

defense that different accounts which were rendered are inaccurate, and contain errors and omissions, he is entitled to a bill of particulars of the account alleged by the plaintiff to have been stated and of the items which made up the same.

APPEAL by the defendant, Philip De Ronde, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1911, denying the defendant's motion for a bill of particulars.

Clarence E. Thornall, for the appellant.

Nathan D. Stern, for the respondents.

APP. DIV.--VOL. CXLVI. 1

First Department, July, 1911.

(Vol. 146. MCLAUGHLIN, J.:

The action is upon an account stated. The answer denies that an account was stated between the parties, and alleges, as a separate and distinct defense, that all the accounts rendered by the Frank S. De Ronde Company to the defendant had upon them letters which indicated that errors and omissions were excepted; that all statements and 'accounts rendered were made from the books of the corporation, which were inaccurately kept and were not true books of account, and that the account with the defendant was not a correct account and contained errors and omissions. This is the second appeal. Before the answer was served the defendant moved for a bill of particulars of the account alleged to have been stated. The motion was granted, but on appeal the same was reversed (138 App. Div. 898) on the ground that there was nothing in the record to show that the account stated was an account containing items. After the defendant answered he again moved for a bill of particulars. The motion was denied, the learned justice at Special Term, as appears from his memorandum, holding that in view of the former decision of the Appellate Division the defendant was not entitled to a bill of particulars. The fact that the previous motion for a bill of particulars was denied is no reason why this motion should have been denied, provided a different state of facts were presented. A different state of facts was presented, because when the motion which resulted in the order here appealed from was made the defendant had answered, and from which it appears that different accounts were rendered, which are alleged to have been inaccurate, and in addition that errors and omissions were excepted. From these allegations it is fairly to be inferred that the accounts which were rendered did contain items.

Under such circumstances, the plaintiffs' cause of action being predicated upon an account stated, I am of the opinion that the defendant was entitled to have a copy of the account alleged to have been stated as well as the items which made up that account. (Keyes v. Flint Co., 69 App. Div. 141; Herbert v. Hellbut, 119 id. 426; Wells v. Van Aken, 39 Hun, 315.)

App. Div.]

First Department, July, 1911. The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P. J., CLARKE, SCOTT and DOWLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

RICHARD GRAMMER, Respondent, v. NATHAN GREENBAUM, as

Receiver, etc., of the NATIONAL STANDARD BREWING COMPANY, Appellant, Impleaded with the NATIONAL STANDARD BREWING COMPANY, Defendant.

First Department, July 7, 1911, Practice - stay of proceedings — motion in one action to stay proceed

ings in another. A motion to stay an action cannot be made in another action, but only in

the action sought to be stayed. Where it is sought to enjoin parties froni proceeding in another action the relief must be obtained by

injunction and such relief must be demanded in the complaint. Thus, an action in the City Court of New York cannot be stayed on motion

in another suit brought by the defendant in the Supreme Court to set aside the agreement which is the subject-matter of the prior action, nor can the Supreme Court enjoin the prosecution of the other action where no such relief is demanded in the complaint.

APPEAL by the defendant, Nathan Greenbaum, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1911, staying the prosecution of an action brought in the City Court of the city of New York.

Gustav Gunkel, for the appellant.

Joseph H. Kohan, for the respondent. MCLAUGHLIN, J.:

In September, 1910, the defendant Greenbaum, as receiver of the National Standard Brewing Company, commenced an

First Department, July, 1911.

(Vol. 146. action in the City Court of the city of New York against the plaintiff in this action to recover from him the sum of $1,200, under an agreement to purchase a certain number of shares of the capital stock of the National Standard Brewing Company. The action was tried and in October following, judgment rendered in favor of Greenbaum, as receiver, for the amount claimed. An appeal was taken to the Appellate Term and while the same was pending this action was commenced for the purpose of setting aside the agreement upon which the judgment in the City Court action had been obtained, the plaintiff alleging that such agreement was obtained by fraud practiced upon him, which entitled him to a rescission, the judgment demanded. The Appellate Term reversed the judgment of the City Court and ordered a new trial. (Greenbaum v. Grammer, 71 Misc. Rep. 433.) Thereupon the plaintiff moved in this action to stay the receiver from prosecuting the action in the City Court. The motion was granted and the appeal is from that order.

This court has several times said that the trial of an action cannot be stayed in this way. The power of the court to stay proceedings or control the trial of an action is one which must be exercised in the action itself (Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126; North Central Realty Co. v. Blackman, 145 id. 199), and where it is sought to enjoin parties from proceeding in another action, such relief must be by injunction in an action where such relief is demanded in the complaint. (Belasco Co. v. Klaw, 98 App. Div. 74; Webster v. Columbian National Life Ins. Co., 131 id. 837; affd., 196 N. Y. 523.)

Under the authorities cited the court could not, by an order in this action, stay the trial of the City Court action. Nor could it enjoin the prosecution of that action by an order in this, because no such relief is demanded in the complaint.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

INGRAHAM, P. J., CLARKE, SCOTT and DOWLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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