Williams v. Folsom — 26 Abb. N. Cas. 374

Majority

p. 374

WILLIAMS v. FOLSOM.

N. Y. Supreme Court, First Department, Special Term ;

February, 1891.

Headnote

1. Bill of particular's.] Plaintiff will not be required to furnish a bill of particulars as to fraudulent representations or acts of defendant upon which she bases her action, as such facts must be presumed to be within the knowledge of defendant.

2. The same.] In action by principal against the agent of her real estate to recover the profits from property which she had been induced by fraudulent representations to sell to a purchaser representing her agent,—held, in view of the confidential relations existing between the parties it would be extremely unjust, by requiring plaintiff to furnish a bill of particulars, to restrict her on the trial to proof of the agent’s misrepresentations or breaches of duty which she had been able to discover at the commencement of the action, as defendant could prove good faith without difficulty.

Motion to compel plaintiff to furnish a bill of par ticulars.

p. 375

Further facts, see opinion.

Cravath & Houston, for plaintiffs.

Davenport, Smith & Perkins, for defendants.

The complaint alleges that defendants were the agents of the plaintiff to manage certain real estate owned by her, and that while acting as such agents, made various false representations to her and persuaded her to sell the property to a person who was represented to her as a purchaser, when, in fact, the purchase was for the defendants, at a price much less than its real value, and asks to recover from the defendants the profit made by them in dealing with her property. The particulars that the defendants seek to compel plaintiff to furnish, relate entirely to representations made by defendants, or to the acts of the defendants, upon which the plaintiff bases her cause of action. It follows, therefore, that defendants have a much better opportunity of knowing the acts performed by them, and the representations made by them, than the plaintiff can have, and I do not think that the protection of the defendants requires the plaintiff to specify all the acts and representations of the defendants, which must be within their knowledge.

.In cases of this character, where the relations that existed between the parties were of a confidential character, and where the principal was entitled to the utmost good faith from her agents, it' would be extremely unjust to restrict the plaintiff on the trial to proof of such of her agent’s misrepresentations or breaches of his duty as she has been able to discover at the time of the commencement of the action. If defendants have acted in good faith, they can have no difficulty in proving that fact. If the sale that was made by plaintiff was actually made to another pur

p. 376

chaser, and not for the benefit of the defendants, that fact can be easily shown by defendants. Under all the circumstances, I see no reason why a bill of particulars should be granted.

Motion denied, with $10 costs to abide the event.