Majority
p. 567Christopher C. Smith, Appellant, v. The Bradstreet Company and Joseph Parker Kerby, Respondents. Second Department, November 19, 1909.
Headnote
Pleading—bill of particulars — special damages — practice — motion to preclude evidence.A plaintiff suing for malicious prosecution may, in the discretion of the court, be required to give a bill of particulars of special damages claimed. ■
It is the better practice to reserve the question as to whether a party required to furnish a bill of particulars shall be precluded from giving evidence and make it the subject of a separate motion. If no bill be furnished, the order follows as a matter of course. If a bill be furnished the question of its sufficiency can better be determined after service and before trial than at a time when the court is ready to dispose of the controversy on the merits.
On a motion to preclude a party from giving evidence after the service of a bill of particulais, the court may allow him to furnish a further bill if the one served be insufficient.
Appeal by the plaintiff, Christopher C. Smith, from an order of the Supreme Court, made at the- Kings County Special Term and entered in the office of the cleric of the county of Kings on the 3d day of ¡¡May, 1909, granting the defendants’ motion for a bill of particulars as to the details of the alleged special damages in an action for malicious prosecution.
Elias B. Goodmam, and H. G. S. Stimpson, for the appellant.
Karl T. Frederick, for the respondents.
We do not think the order is open to the objections urged by the appellant, and under the rule recognized and approved in Dietz v. Leber ( 33 App. Div. 563 ) the matters directed to be disclosed by
p. 568
the order are well within the discretionary powers of the court at Special Term. If the plaintiff has suffered special damages they must be such damages as are known to him, and the defendants ought not to be called upon to prepare to meet every possible damage which the plaintiff might attempt to prove; it is the object of all pleading, and a bill of particulars is but a supplemental part of the pleadings, that the parties shall be called upon to litigate definite issues, where each is on an equal footing, and this could not be the case under the plaintiff’s complaint. It may be that there are some parts of the order which might just as well not have been made, as they are sufficiently covered by the general provisions, but we discover no harm which can come to the plaintiff by complying with the order as it is. We think, however, as a matter of practice, that it is better as a general rule to reserve the question of whether the party required to furnish a bill of particulars shall be precluded from giving evidence and make it the subject of a separate motion. If nc bill is furnished, the order would follow as matter of course. If a bill is furnished, the question whether it is sufficiently full and complete can better be determined after service and before trial than at a time when the court is ready to take up and dispose of the controversy on the merits. (Gebhard v. Parker, 120 N. Y. 33 , 37; Fatter v. Ranger, 99 App. Div. 374 ; Bartow v. Sidway, 72 Hun, 435 .) It does not seem to us to be an objection to a motion of such a character that thereby the party directed to. furnish the bill is precluded from furnishing a further bill if -the one served is found insufficient (Reader v. Haggin, 114 App. Div. 112 ), for such relief is entirely within the power of the court when the motion comes before it.
The order appealed from should be modified by striking therefrom paragraph 3, relative to the giving of evidence without prejudice to a further application if so advised, and as modified it should be affirmed, without costs.
Hirsohberg, P. J., Woodward, Burr, Rich and Hiller, JJ., concurred.
Order modified in accordance with opinion, without prejudice to a further application if so advised, and as so modified affirmed, without costs.
Cases cited
- Gebhard v. Parker 120 N. Y. 33 at 37 p. 568
- Faller v. Ranger 99 App. Div. 374 p. 568