Boskowitz v. Sulzbacher — 124 A.D. 682

Majority

p. 682

Jesse L. Boskowitz, as Administrator, etc., of Ignatz Boskowitz, Deceased, Appellant, v. Joseph H. Sulzbacher, Respondent.

First Department,

March 13, 1908.

Headnote

Pleading — bill of particulars — suit to set aside dissolution of partnership—fraud.

In an action by an administrator brought to set aside an agreement dissolving a partnership on the ground that the same was procured by fraud, misrepresentation, etc., the plaintiff will hot be required to furnish a bill of particulars of matters pertinent only upon, an accounting. He should, however, give particulars of the frauds which he claims were practiced by the defendant upon - the deceased partner.

Appeal by "the plaintiff, Jesse L. Boskowitz, as administrator, "etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 10th. day of February, 1908, granting the defendant’s motion for a bill of particulars.

John JB. Stanohfielcl. for the appellant.

. Charles L. Craig, for the respondent.

The order directing the plaintiff to furnish a bill of particulars is altogether too broad, in that it requires the plaintiff to particularize practically all of the evidence which lie proposes to introduce upon the trial, as Well as matters pertinent to an accounting only.

p. 683

The action is brought to set aside a copartnership dissolution agreement on the ground that it was procured. by fraud, misrepresentations and concealments respecting the partnérship property.

• A bill of particulars as to matters pertinent only to the accounting should hot now be required. Ho accounting can be liad unless the plaintiff shall succeed in setting aside the dissolution agreement. The defendant is entitled, however, to be furnished with a bill of particulars of the frauds which the plaintiff claims were practiced by the defendant upon the deceased partner to induce him to sign the dissolution agreement, and the acts- of mismanagement, concealment and secret dealings on the part of defendant.which it is claimed made the account rendered á false and fraudulent one. If the plaintiff has not precise knowledge of all these he can state his claim concerning them specifically and thus properly apprise the defendant as to what he must meet upon the trial. This will be accomplished by requiring plaintiff to give a bill of particulars only as to those matters contained in paragraphs'of the Order numbered 1, 11, 19, 20, 30, .31, 32, 37 to the words “ the extent," 43, 44, 45, 63, 66 to the words “ and the extent,” 73, 74 to the words “ together with,” 77, -78, 80, 82, 89, 91, 96, 99,104,107 and 108, All the other numbered paragraphs of the order should be stricken out.

Even as thus modified the preparation of the bill of particulars will necessarily occupy much time. The order appealed from allows only five days. That should be extended to fifteen days from the notice of entry of the order on this appeal.

The order appealed from should be modified as above stated, and as so modified affirmed, without costs to either party.

Present — Ingraham, Laughlin, Clarke, Houghton and Soott, J J.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice^