Talmadge v. Sanitary Security Co. — 2 A.D. 43

Majority

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John F. Talmadge, Respondent, v. The Sanitary Security Company, Appellant.

Headnote

pill of particular's—as to the name of the party who made false representations — a denied, that, the reps'esentations were made is necessary.

The complaint in an action alleged that the plaintiff was induced to purchase certain stocks of the defendant by means of false representations made by authorized agents of the defendant, but did not disclose who these persons were. The defendant moved for a bill of particulars upon an affidavit which stated that it was ignorant of the names of the persons who had made the representations relied on; but there was no proof that the allegation of the complaint relative to the false representations was denied by the defendant nor was a copy of the answer read upon the motion.

Held,, that the motion for a bill of particulars was properly denied.

Appeal by the defendant, The Sanitary Security Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of January, 1896, denying' the defendant’s motion to compel the plaintiff to furnish a bill of particulars.

John Berry, for the appellant.

James MoKeen, for the respondent.

The complaint alleged that the plaintiff was induced to purchase certain stock of the defendant by means of false representations by

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.authorized agents of'the corporation. It did not disclose, however, who the persons were by whom' the representations were said to have been made. In order to ascertain these names the defendant moved, at Special Term, for a bill of particulars, upon an affidavit made by the president of the corporation, stating that the defendant .and its officers were ignorant of the names of the persons who, it was .alleged, had made the false representations relied upon. If this affidavit had been accompanied by proof that the allegation of the •complaint in respect to the false representations was denied by the •defendant, then a proper case for relief would have been made out, so far as to call upon the Special Term to require the plaintiff to give the names of the persons by whom lie would seek to show that the misrepresentations had been made ; hut no copy of the answer appears to have been furnished to the judge who heard the motion, and there is no statement in the moving affidavit as to what the answer contains.

On this record we feel constrained to affirm the order appealed from, but without costs and with leave to the defendant to renew its motion for a hill of particulars upon papers showing, that the allegations of the complaint, in regard to the false representations, are denied.

All concurred.

•Order affirmed, without costs, with leave to the defendant to renew its motion for a bill of particulars, upon papers showing that the allegations of the complaint, in regard to the false representations, are denied.