Allter v. Jerome

Headnote

Bill of particulars —when defendant not required to give particulars of defense in judgment creditor’s action to set aside conveyance.

When, in an action by a judgment creditor to set aside a conveyance by the judgment debtor as fraudulent, the defendant answers that the conveyance which reserved a life interest to the judgment creditor was made in consideration for services, etc., rendered by the grantee, and it appears that the judgment creditor has never attempted to collect his j udgment from said reserved life interest,.the defendant should not be required to file a bill of particulars of the services rendered by the grantee, when no special reason is shown therefor by the judgment creditor who merely sets out that he has no knowledge, etc,, of the account set forth in the answer and does not believe in the existence thereof.

Appeal by the defendants, Lydia Jerome and another^ from an order of the Supreme Court, made at .the Fulton- Special Term and entered in'the office of the clerk of the county of Montgomery on the 31st day of August, 1905, directing the defendants to furnish a / bill of particulars. . |

The plaintiff, by his amended complaint, al'leges that he recovered a judgment against the defendant Jerome in 1901 on a claim for groceries and provisions sold to her in 1896, arid thereafter- to and' including September 5, 1899; that he caused .said' judgment to be duly docketed in the county of Montgomery and a transcript thereof to be duly filed in the county of ■ Herkimer, and that execution has been-issued thereon in the county of Herkiiher, where the said Jerome resided and yet resides, and that the same has been returned wholly unsatisfied. ■ . „ .

He further alleges that the defendant Jerome was, the ■ owner of certain real property in the county .of Montgomery which she conveyed by deed dated November 9, 1898, to the defendant Smith, reserving to herself a life estate in the following words: “Said ■ grantor reserves to herself for the period of her natural life the right to use and occupy the" same and have all the rents, issues and profits thereof.”

The complaint further alleges that the conveyance-nf said real property by the defendant Jerome to the defendant Smith was fraudulent and void as to the plaintiff and that it was made with . intent by the parties to hinder, delay and defraud the ’ plaintiff. The complaint demands judgment that said .deed' be adjudged fraudulent and void and that the plaintiff have execution against said.real property: . The-defendants answered separately, and in the answer of the defendant Jerome it is alleged: “for Upwards of five years, before the said 9th day of November, 1898, namely,' betweeri January 1st, 1893, and November 8th, 1898, the defendant; Mrs. Agatha Smith, had worked for' the defendant, Lydia Jerome, at 'her special instance and request, as her housekeeper,nurse and companion; that the said services were actually'and reasonably worth One hundred ($10-0) dollars per year during said . period. That said deed of conveyance was made, executed - and delivered in consideration of and in part payment for said services.”

The answer of the defendant Smith contains substantially, the

same allegations except that it includes a statement that the defendant Jerome promised to pay said $100 per year.

It does not appear that execution has ever been issued to the sheriff of the county in which said real property is situated or that any effort has been made to collect said judgment from the. life estate of the defendant Jerome in said real property.

The plaintiff on motion obtained an order that the defendants furnish a verified bill of particulars as follows :

“ 1. If the agreement between the above-named defendants alleged to have been in existence and mentioned in subdivision second and in folio number six of the answer to the amended complaint of defendant Lydia Jerome was in writing, give a copy of it.

“ 2. If said agreement was not in writing then state when it was made, and when it was that the wages of one hundred dollars per year was agreed upon between the said defendants as alleged in the section above mentioned.

“ 3. State what part of the said wages was agreed upon as the consideration for the transfer of the land in question as alleged in defendant Smith’s answer to the amended complaint in subdivision first of the second section thereof.

“ 4. State in full the consideration given by the defendant Smith to the defendant Jerome for the land as alleged in the answer tb the amended complaint of defendant Smith and mentioned in the section last, above mentioned.”

The only reason appearing therefor apart from the pleadings is found in an affidavit of the plaintiff in which he says: “ That he has no knowledge or information of any account as set forth in the defense in this action as existing between the defendants, * ’ * *

and never has had any suspicion that such an account existed, as he is familiar with the apparent relations of the said parties 'and does ‘ not now believe that any such account exists between the parties which has been made in good faith.”

And in an affidavit of his. attorney in which he says: “ That deponent is entirely ignorant of the information asked for herein, and has no means of otherwise finding the particulars sought, and that plaintiff deems it unsafe to proceed to trial without the particulars herein demanded.”

From the order requiring said bill of particulars this appeal is taken.