Dwight v. Germania Life Ins. Co., 84 N. Y., 493.

47

is not to be so construed. The times, in a true construction of 46 the order, are the spaces of time, and the places are the municipal localities. Surely if the defendants have been informed so as to aver, and verify the averment, that Dwight had bronchitis and spit blood, they must have information specific enough to comply with such a requirement. Nor would a statement thereof imperil a defence beyond a peril to which it should be exposed, that of having the testimony to sustain it met by countervailing testimony covering the same space of time and as to the same localities. It surely is not more hazardous than to have met the new trial granted on the ground of surprise in 5 Cow. (supra). To state the other insurances upon the life of Dwight, or the other applications for insurance, is easy if they are known or information has been had of them; and we see no likelihood of unreasonable hazard to the defence by doing it. Nor do we see that the order calls for a disclosure of the evidence on which the defendants rely to support their defence. A statement would not disclose whether the evidence would be oral or written, nor who would give the oral testimony, nor the nature or source of that in writing. And these remarks apply mutatis mutandis to the 48 other matters contained in the various orders. And it is always to be borne in mind, that these orders are to be read and used, and action under them is to be had, in accordance with settled rules of practice, which are safeguards to parties on either side. In the words of LORD MANSFIELD: "The bill of particulars must not be made the instrument of injustice, which it is intended to prevent." (Millwood v. Walter, 2 Taunt., 224. See, also, Hurst v. Watkis, 1 Camp., 69, note; Lovelock v. Cheveley, 1 Holt's N. P., 552.)

We are not required to say, and we do not say, that in the exercise of discretion we would have granted orders as minute in some points as are the orders in these cases. If they are likely to be oppressive upon the defendants, application for relief will doubtless be considerately met by the Special Term. The purpose of the court below is to secure a fair and well advised trial of an important and substantial controversy, after due preparation for what will be shown on either side; and the

49

Butler v. Mann, 9 Abb. N. C., 49.

50 ear of the court will be open to any reasons that will convince it that further action is called for to that end.

These considerations bring us to the conclusion that the appeals in these cases should be dismissed.

All the judges concurred except FINCH, J., taking no part, and RAPALLO, J., absent.

Appeal dismissed.

1

BUTLER v. MANN.

New York Supreme Court, Special Term, 1880.

[Reported in 9 Abb. N. C., 49.]

1. The provisions of the Code of Civil Procedure, allowing the court to direct a bill of particulars of the claim of either party, confers a broad judicial discretion, and are declaratory of the practice which existed prior to the Code.*

2. The power thus conferred should be prudently employed, with the view to enable parties to prepare their pleadings and evidence for the trial of the real issues involved, but not to impose unnecessary labor on any party.

3. Where sureties, sued on an official bond, applied for particulars of the moneys received by the principal, and for which it was alleged he had failed to account,-Held, that in absence of anything to indicate that defendants could not, equally with plaintiff, ascertain the facts from the principal, the application should be denied.

4. The object of this provision is to enable a party reasonably to protect himself against surprise, not to impede the prosecution of an action, nor unnecessarily increase its expense.

Motion for bill of particulars.

Samuel Butler, as supervisor of the town of Richmondville, sued Tobias Mann and others on an official bond. Defendants now moved to compel the plaintiff to furnish a bill of particulars.

INGALLS, J. Section 531 of the Code of Civil Procedure provides: "The court may in any case direct a bill of particulars of

*For other cases on the right to a bill of particulars, see Wigand v. Dejonge, 18 Hun, 405; Stilwell. Hernandez, 7 Daly, 485; Stiebelung v. Lockhaus, 21 Hun, 457; Clark e. St. James Ch., id., 95.

For the mode of obtaining the bill, see Clegg v. American Newspaper Union, 7 Abb. N. C., 59.

Butler v. Mann, 9 Abb. N. C., 49.

the claim of either party to be delivered to the adverse party." 2 This provision confers upon the court a broad judicial discretion, and is declaratory of a practice which existed anterior to the adoption of the Code, but which was very sparingly exercised in this State. (Tilton v. Beecher, 59 N. Y., 176.) The power thus conferred should be prudently employed, with the view to enable parties to prepare their pleadings and evidence for the trial of the real issues involved in an action, and not to impose unnecessary labor upon any party. This statute, if judiciously enforced, will be of great value; otherwise, it will prove mischievous and oppressive.

3

An examination of the facts, disclosed by the papers, has convinced us that the defendants can, without risk or embarrassment, answer the complaint in some of the forms of pleading provided by section 500 of the Code. So far as preparing for the trial of the action is concerned, we do not discover that the plaintiff possesses facilities for ascertaining the facts desired by the defendants, superior to those which are possessed by the latter. It is not shown that any hostility exists between the principal to the bond and his sureties, and we should not infer that informa- 4 ation is withheld by him from the defendants, in regard to the moneys received and disbursed by him, which constitute substantially the subject-matter of this action, and it would, therefore, seem that the defendants possess advantages for ascertaining the facts which they seek superior to those within the reach of the plaintiff. The action is upon a bond, and the breach assigned is in effect the failure of the principal thereto to account for the moneys which he has received belonging to the plaintiff. It is but reasonable to assume that the receipt and disbursement of the money by the principal to the bond, as alleged in the complaint are within the knowledge of such principal, and that the defendants, the sureties, can procure from him information in regard thereto, more reliable and accurate than any statement which the plaintiff can furnish. In such case the defendants should not be allowed to impose upon the plaintiff the labor of furnishing particulars which are equally within the reach of the defendants (Powers v. Hughes, 7 J. & S., 482; Wiegand v. De Jonge, 18 Hun, 405; Youngs v. De Mott, 1 Barb., 30). It

5

Melvin v. Wood, 3 Abb. Ct. of App. Dec., 272.

6 was suggested upon the argument that, the plaintiff having brought the action, it should be assumed that he is in possession of the facts which constitute the cause of action. The plaintiff has set out in the complaint, the bond, and alleged wherein the condition thereof has been violated by the principal thereto, and the extent of his default so far as the knowledge and information of the plaintiff extends. This statute should not be construed and enforced in such manner as to create unnecessary perplexity and embarrassment, or prove a snare in the prosecution of actions. It was obviously intended by this provision of the Code to enable a party reasonably to protect himself against surprise, but not to place impediments in the way of the prosecution of an action, or to unnecessarily increase the expense of litigation. Without stopping to discuss the various decisions which have been made upon this subject, and bearing in mind that every case must be determined in accordance with the circumstances of the particular case, we conclude that the defendants in this action have failed to establish a state of facts entitling them to the bill of particulars which they seek, and that the 8 motion must be denied, with costs.

7

1

MELVIN v. WOOD.

New York Court of Appeals, 1867.

[Reported in 3 Abb. Ct. of App. Dec., 272.]

1. A bill of particulars annexed to the complaint forms part of it, and is amendable accordingly.

2. A referee has power, on the trial of the issues, to allow a new bill of particulars to be substituted for that annexed to the complaint.

Action to recover a balance of account. The account included charges for goods sold and moneys advanced by plaintiffs to defendants, and credits for proceeds of sales on commission, damages for injured goods, interest, etc.

The plaintiffs annexed to the complaint a bill of particulars or copy of the account. The referee allowed them to amend this upon the trial, by substituting a new bill of particulars.

Judgment was given for plaintiffs, and defendants appealed.

Melvin v. Wood, 3 Abb. Ct. of App. Dec., 272.

BY THE COURT.-DAVIES, Ch. J. Upon the facts found by the 2 learned referee, the judgment in favor of the plaintiffs for the amount thereof was clearly correct, and must stand, if no errors were committed upon the trial. This I understand to be conceded by the learned counsel for the appellants, and he therefore proceeds in his brief to point out the several erroneous rulings which, in his opinion, he thinks the referee made upon the trial. [After disposing of an unimportant exception to evidence, the learned judge proceeded as follows:]

3

2. It is objected that the referee erred in allowing the plaintiffs to amend their bill of particulars. To the complaint was annexed, and served therewith, an account of the defendants with the plaintiffs, appropriately designated as a bill of particulars. It formed a part of the pleadings in the action. Upon the trial, the counsel for the defendant Wood, moved for leave to amend his answer, so as to conform the second and third heads of the defence, and particularly the counterclaims, to the testimony already given, and particularly to the testimony of Samuel Barker. The referee decided to allow the amendments to the 4 answer of the defendant Wood, as proposed by his counsel, and thereupon the same was amended accordingly. The plaintiff's counsel then moved for leave to amend the complaint by substituting, in the place of the original bill of particulars, a new bill of items filed with the referee, to which the counsel for the defendant Wood, objected; and the referee overruled the objection, and allowed the amendment to the complaint; and to this decision the counsel for the defendant Wood, then and there excepted.

Sections 169 and 173 of the Code [of Procedure] fully authorized the referee to amend the pleadings of the respective parties in this action, and we do not regard his rulings in this respect open to review in this court. It was a matter resting in the discretion of the referee, and we think it was properly exercised in the present instance. We think it hardly lies with the defendant to object that the same favor was allowed to the plaintiff which he asked for and was accorded to himself, particularly as the very amendments to his pleadings, which he made by leave of the referee,

5