Evening Herald Co. v. Kilmer — 172 A.D. 687

Majority

p. 687

The Evening Herald Company, Respondent, Appellant, v. Willis Sharpe Kilmer and Jerome B. Hadsell, Appellants, Respondents.

Fourth Department,

April 19, 1916.

Headnote

Discovery — examination of defendant before trial to frame bill of particulars — when plaintiff fully protected by terms of previous order.

Where the plaintiff in an action for damages for an alleged conspiracy to injure his business by enticing away patrons and employees has been ordered to give a bill of particulars, and the order provides that only

p. 688

those particulars of -which plaintiff has knowledge need be given and as to particulars of which it has no knowledge it shall state the lack of knowledge under oath, it is not entitled to a subsequent examination of the defendant before trial for the purpose of framing the bill of particulars, for the plaintiff is protected by the terms of the original order.

Cross-appeals by the plaintiff, The Evening Herald Company, and the defendants, Willis Sharpe Kilmer and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 17th day of August, 1915, modifying a prior order made on the 25th day of June, 1915, directing the examination of the defendants before trial.

The appeals are heard in this department pursuant to an order of the Appellate Division of the Third Department made under section 231 of the Code of Civil Procedure. (See 171 App. Div. 969 .)

Halsey Sayles [Stanchfield, Lovell, Falch & Sayles, attorneys], for the plaintiff.

William Nottingham and Theodore R. Tuthill [Curtiss, Keenan & Tuthill, attorneys], for the defendants.

The action is for damages for conspiracy to injure and destroy the business of plaintiff by founding for that purpose a rival newspaper in plaintiff’s field, and enticing away plaintiff’s subscribers, advertisers, patrons and employees.

On affidavits tending to show that defendants were ignorant as to certain alleged specific acts of defendants and their agents in furtherance of such conspiracy, the court ordered plaintiff to furnish a bill of particulars, among other things, as to the time when defendants sent an emissary to plaintiff’s president with a proposition looking to the abandonment of such conspiracy and the name of such emissary, and the names of the several employees, subscribers and patrons of plaintiff whom defendants had solicited to leave plaintiff’s employ or discontinue their subscription to plaintiff’s newspaper or discontinue their advertising patronage.

The order for a bill of particulars was, to some extent,

p. 689

modified at Special Term, but, on defendants’ appeal, was restored to its original form by the Appellate Division in the Third Department. (Evening Herald Co. v. Kilmer, 167 App. Div. 399 .) Instead of complying with the order, plaintiff, on affidavit of its president that plaintiff would be unable to give the particulars and that plaintiff desired the testimony for use upon the trial, procured an order for the examination of defendants before trial in reference to all the matters above specified and some others to which reference need not be made here. This order was modified by the Special Term on defendants’ motion to vacate it by eliminating some of the subjects of examination other than those above mentioned, and both parties have appealed from such order of modification, plaintiff claiming that the order should stand as originally made, and defendants that it should be wholly vacated.

We think that the order should not stand, and that a case was not made entitling plaintiff to examine the defendants before trial upon the subjects specified in the order. Plaintiff was ordered to give the bill of particulars because defendants by their affidavits satisfied the court that defendants were ignorant of the particulars which plaintiff was ordered to furnish. For the most part, these particulars relate to matters which are entirely capable of ascertainment and proof by plaintiff from the several former employees, subscribers and advertising patrons of plaintiff. We think an examination of defendants is not necessary to enable plaintiff to comply with the order for a bill of particulars, for that order, in effect, requires plaintiff to furnish only such particulars as it has knowledge of. The concluding sentence of the order is as follows: “It is further ordered that if the plaintiff has no knowledge with reference to any of the foregoing particulars it shall state such lack of knowledge under oath in lieu thereof.” This clause of the order, we think, entirely relieves plaintiff from the necessity of giving any particulars, except such as are within the knowledge or information of its officers, or such as it can, acting in good faith, obtain from sources other than an examination of the defendants. If plaintiff complies in good faith with the order in so far as it can do so, and states under oath its

p. 690

inability to comply further, then we think it has performed its full duty under the order, and that it cannot be penalized for want of fuller' compliance.

The principal object of the examination seems to be to unable plaintiff to furnish the bill of particulars. As it does not seem to be necessary for that purpose, we think the order should be wholly vacated to the end that if plaintiff, after furnishing the bill of particulars, still desires to take the deposition of defendants for use upon the trial, the proper scope and limits of such an examination, if one is proper or necessary, may be better determined.

The order appealed from should be reversed, with ten dollars costs and disbursements to defendants, and the motion to vacate the order for defendants’ examination should be granted, with ten dollars costs, without prejudice to an application by plaintiff, if so advised, to take the depositions of defendants for use upon the trial after plaintiff has complied with the order for a bill of particulars.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate the order for examination granted, with ten dollars costs to defendants, without prejudice to an application by plaintiff, if so advised, to take the depositions of defendants for use upon the trial after plaintiff has complied with the order for a bill of particulars.