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Newman v. West

101 A.D. 288 Court N.Y. App. Div. English

Delivered by Chase, J.;

Contents

Majority

p. 288
Isidore Newman, Respondent, v. Walter West, Appellant.

Headnote

Action for false representations—MU of particulars, when not denied because the answer contained only admissions and denials — the fraud must be denied — a verified answer takes the place of an affidavit.
When, in an action brought to recover damages for alleged false and fraudulent representations made by the defendant in the sale of two horses to the plaintiff, the defendant, who denied in his answer the fraud charged in the complaint, is entitled to a hill of particulars of the plaintiff’s claim, considered.
The fact that an answer contains only admissions and denials may furnish a good ■reason for denjúng a motion made by the plaintiff to compel the defendant to serve a hill of particulars, hút does not furnish sufficient reason for the denial of a motion made by the defendant to compel the plaintiff to furnish a hill of particular's.
Unless the defendant in an action for fraud denies the fraud charged in the complaint, a hill of particulars of the plaintiff's claim should not he ordered.
On a motion by a defendant for a hill of particulars, denials contained in the defendant’s verified answer may he considered, although such denials are not repeated in a separate affidavit.
Appeal by the defendant, Walter West, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of October, 1904, denying the defendant’s motion for a bill of particulars of the plaintiff’s complaint. '
This action is brought by the plaintiff to recover damages' for alleged false and fraudulent representations made by the defendant in the sale of two horses to the plaintiff. The material parts of said complaint, so far as the question now involved is concerned, are' as follows:
“First. That heretofore and in or about the month of July, 1904, at Saratoga Springs, Saratoga County, N. Y., the defendant offered to sell to plaintiff a certain team of horses, consisting of two horses, and then and there falsely and fraudulently represented that said horses, and each of them, were sound, free from fraud, seven (I) and eight (8) years of age, respectively, and correct in every respect.”
“Fowth. That one of said horses was not sound or free from fault nor correct in every respect, but was unsound, unkind and was older than seven or eight years of age ; that said horse’s feet were contracted, and said horse was lame and unsound and had wind
p. 289
puffs on every leg, and splint on forward leg; that said horse had been blistered for lameness or other disease.
“Fifth. That the other one of said horses was much older than seven or eight years ; had and has splints; is puffed on legs, and has had for some time what deponent on information and belief alleges to be a bone spavin.”
Plaintiff alleges that the horses were worth $410 less than they would liave been had they been as represented by the defendant, and that he has necessarily spent $125 in caring for and endeavoring to cure said horses and demands judgment for $535.
The defendant by his amended answer denies that he made any false or fraudulent representations in regard to said horses. He admits that “ said horses were more than seven and eight years of age; that one of said horse’s feet were[1] somewhat contracted, and said horse had wind puffs on its legs and splints on forward leg, and that the other of said horses had splints and puffs on its legs.”
He further alleges that whatever defects existed in said horses were apparent, open and plainly visible at the time of the sale, and were known to the plaintiff’s wife, who acted for the plaintiff in making the sale, and that the plaintiff purchased said horses with knowledge of all the defects existing in either of said horses.
It further appears that subsequent to the commencement of this action the defendant, with the permission of the plaintiff and with the aid of two veterinary surgeons, had examined said horses for the purpose of ascertaining what defects or faults existed in them.
The notice of motion specified the particulars which the defendant asked that the plaintiff should be required to furnish him. The court denied, the motion and from the order entered thereon this appeal is taken.
John L. Henning and Horace E. McKnight, for the appellant.
George R. Salisbury, for the respondent.

Plaintiff insists that the defendant’s answer is practically a general denial and that consequently he is not entitled td a bill of par

p. 290
ticulars. When an answer contains only admissions and denials, it may be a-good reason for denying a motion made by the plaintiff to compel a bill of particulars by the defendant (King v. Ross, 21 App. Div. 475 ; Gray v. Shepard, 36 N. Y. St.. Repr. 610 ; St an ley v. Block, 56 App. Div. 549 ), but such an- answer cannot adversely affect the question as to whether the plaintiff should furnish a bill of particulars to the defendant.

In an .action for fraud, unless the defendant denies the fraud charged in the complaint, a bill of particulars of the plaintiff's claim should not be ordered. In this, case the defendant in his answer and amended- answer, both of which were ',read by him at the Special Term, denied the fraud charged in the plaintiff’s complaint, but such denials are not repeated by the defendant in his affidavit. Where the denials in' a defendant’s answer are clear, and specific I seé no reason, notwithstanding the expression in the opinion in Gridley v. Gridley (7 Civ. Proc. Hep. .215), for holding that such denials, because they are in a verified answer and not in a. separate affidavit, are insufficient to meet the requirements on a motion for a bill of particulars'. It is the substance, merit and good faith of the denials that should influence the court in determining whether a • bill of particulars should be ordered rather than the name of the paper in which they are contained. By the Code of Civil Procedure it is provided that in construing such Code the word “ affidavit ” includes a verified pleading in an action or a verified" petition or answer in a, special proceeding. ■ ' (§ 3343, subd. ,11.)

When the complaint and answer are verified the facts .therein stated have equal significance and importance as if stated in an affidavit. (Bl atchford v. N. Y. & N. H. R. R. Co., 7 Abb. Pr. 322 .)

By the 4th and 5th paragraphs of the complaint it is impossible to tell which of the two horses sold to the plaintiff by the defendant were defective in the particulars in said paragraphs stated.- The defendant purchased said horses separately and it is important for him to know which horse is referred- to in each of said paragraphs.

The defendant’s motion for a bill of particulars should be granted to the extent of requiring the' plaintiff to specify - which horse he refers to in each of said paragraphs of the complaint. The defendant is also entitled to a bill of particulars of the several amounts

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paid by him in caring for and endeaving to cure said horses, with the name of the person or persons to whom such amounts were so paid.

All concurred.

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

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