Watson v. Universal Transportation Co., Inc.

Full title: WILLIAM M. WATSON and Others, Copartners, Doing Business under the Firm…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 3, 1920

194 App. Div. 136 (N.Y. App. Div. 1920)

185 N.Y.S. 66

Opinion

December 3, 1920.

Carroll G. Walter of counsel [ Patterson, Eagle, Greenough Day, attorneys], for the appellants.

Lawrence E. Brown of counsel [ Bullowa Bullowa, attorneys], for the respondent.

Present — CLARKE, P.J., DOWLING, SMITH, PAGE and GREENBAUM, JJ.

PER CURIAM:

So much of this order as granted to the defendant the right to a bill of particulars from the plaintiffs of the consideration of the instrument sued upon must be reversed for the reason that the consideration of the instrument is not made an issue by the pleadings. Where the action is upon a negotiable instrument, in order to raise the issue of want of consideration the defendant must allege affirmatively that the instrument was without consideration. (See Abrahamson v. Steele, 176 App. Div. 865.) Not being able to question the consideration the defendant is not entitled to a bill of particulars in respect thereof.

The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion denied.

PER CURIAM:

Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and motion for bill of particulars of consideration denied.