Huyler v. Huyler — 183 A.D. 537

Majority

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David Huyler, Appellant, v. Frank DeK. Huyler, Respondent, Impleaded with Coulter D. Huyler and Others, Defendants. David Huyler, Appellant, v. Coulter D. Huyler, Respondent, Impleaded with Frank DeK. Huyler and Others; Defendants. David Huyler, Appellant, v. Coulter D. Huyler, Respondent, Impleaded with Frank DeK. Huyler and Others, Defendants.

First Department,

March 15, 1918.

Headnote

Pleading — bill of particulars — simply repeating allegations of complaint without affidavit as to inability to give further particulars insufficient — motion to compel acceptance of bill of particulars — costs.

A bill of particulars which merely repeats the allegations of the complaint without any affidavit that plaintiff cannot give further particulars, is insufficient upon its face.

Where upon a motion to compel the defendant’s attorney to accept a hill of particulars, the plaintiff furnishes an affidavit that he is unable to give further particulars, although at the time the bill was rejected he had not made such an affidavit, it is useless to order a further bill of particulars, and the motion should be granted, but without costs.

First, an appeal by the plaintiff, David Huyler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of August, 1917, directing him to serve a further bill of particulars upon the respondent, Frank DeK. Huyler.

Second, an appeal by the plaintiff, David Huyler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of November, 1917, denying his motion to compel the defendant, Coulter D. Huyler, to accept a bill of particulars herein.

Third, an appeal by the plaintiff, David Huyler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of December, 1917, granting the

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motion of the respondent Coulter D. Huyler to preclude plaintiff from giving evidence of parts of the affirmative allegations of his complaint.

Edmund L. Mooney of counsel [Eli S. Wolbarst with him on the brief; Blandy, Mooney & Shipman, attorneys], for the appellant.

Kenneth McEwen, for the respondents.

There are two branches to this case, the defendants appearing by different attorneys. Each attorney moved separately for a bill of particulars. One bill of particulars was ordered upon the motion of Frank DeK. Huyler and repeated only the facts alleged in the complaint: First. The first appeal is from an order compelling the plaintiff to give further particulars, or, in lieu thereof, to serve upon the attorneys for the defendant Frank DeK. Huyler, a verified statement that he is unable to supply said particulars or so much thereof as he is unable to supply. This order was, I think, proper and should be affirmed. The bill of particulars was upon its face insufficient as it simply repeated the allegations of the complaint without any. affidavit that plaintiff could not give further particulars; nor is such an affidavit furnished in response to the motion for a further bill of particulars. The first order should be affirmed.

Second. The attorney for Coulter D. Huyler also demanded a bill of particulars and the same bill of particulars was served upon him as was served upon Frank DeK. Huyler. This the attorney for Coulter D. Huyler refused to accept and the second appeal is from an order denying the plaintiff’s motion to compel him to accept the same. The attorney for Coulter D. Huyler was I think fully justified in refusing to accept the bill of particulars. It gave no other particulars than were stated in the complaint and stated no reason why a further bill could not be given. This was in defiance of the court’s order and was clearly improper. In an affidavit, however, upon which this motion is made, the plaintiff swears that he is unable to give further particulars. In view of this affidavit, it would be useless to order a further bill of particulars and the motion should have been granted to compel the

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attorney for Coulter D. Huyler to accept the bill of particulars tendered, but without costs, as at the time the bill of particulars was rejected the plaintiff had not made affidavit that he could not furnish a more explicit bill of particulars than that given.

Third. The third order is an order of preclusion made at the instance of Coulter D. Huyler upon the ground that no sufficient bill of particulars has been served. This order depends upon our determination of the second appeal herein, and inasmuch as we have reversed the order therein appealed from and have directed the attorney for Coulter D. Huyler to accept the bill of particulars tendered, it would follow that the order of preclusion should be reversed and the motion denied, without costs.

Clarke, P. J., Latjghlin, Dowling and Shearn, JJ., concurred.

In the first case: Order affirmed, with ten dollars costs and disbursements.

In the second case: Order reversed and motion granted, without costs.

In the third case: Order reversed and motion denied, without costs.