Spencer v. Fort Orange Paper Co. — 74 A.D. 74

Majority

p. 74

George E. Spencer, Respondent, v. Fort Orange Paper Company, Appellant, Impleaded with Others.

Headnote

Discretion of the court in granting a bill of particulars — defective authentication of an affidavit disregm’ded.

The granting or withholding of a bill of particulars is within the discretion of the court, and where there has been no abuse of this discretion the appellate courts will not, as a rule, interfere.

The fact that a certificate of authentication made by the clerk of a court of a sister State, attached to an affidavit used on a motion for a bill of particulars,. described the affidavit or deposition as an acknowledgment, may be disregarded under section 723 of the Code of Civil Procedure.

Appeal by the defendant, the Fort Orange Paper 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 4th day of March,. 1902, granting the plaintiff’s motion for a bill of particulars of certain items of the appellant’s answer.

William Man, for the appellant.

Serbert Barry [Julien T. Davies with him on the brief], for the respondent.

The granting or withholding of a bill of particulars is within the discretion of the court (Code Civ. Proc. § 531), and where there has been no abuse of this discretion the appellate Courts will not, as a rule, interfere. We find no such abuse in the matter now before us. The plaintiff, as the assignee of the Atchison Savings

p. 75

Bank in Kansas, brings this action to recover the amount of an accepted draft for $5,000. The assignment was made two years after the draft had been dishonored, and is, of course, subject to all of the defenses which might have been urged against the assignor. The defendant sets up in its answer various defenses, as to some of which the plaintiff asks for a bill of particulars, and under the circumstances of this case it seems entirely clear to us that the plaintiff has a right to have the issues confined to specific matters. Plaintiff’s assignor is in Kansas, and it would manifestly be unfair to the plaintiff to have the way left open for the introduction of evidence which could not have been reasonably anticipated, and which it would be impossible, upon the trial of the action, to meet.

The defendant, the Fort Orange Paper Company, opposed the granting of this order, upon the ground that the certificate of the clerk of the Kansas court, attached to an affidavit necessary to the plaintiff’s motion, described the affidavit or deposition as an acknowledgment, but this was overruled “ because it was evident this Avas a clerical error only, and the paper was otherwise authenticated by other words.” The defendant, upon this appeal, urges other objections to the certificate, but we are of opinion that* not having raised these upon the hearing of the motion, they are not available on appeal, assuming them to have merit. In “ every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party ” (Code Civ. Proc. § 723), and this seems a very good place for the application of this rule. The defect in the certificate of authentication, assuming it to be a defect, does not affect the substantial rights of the defendant; it is merely a regulation of the proceedings, and if it were necessary the court might feel that it was justified in taking judicial notice of the fact that a notary public is entitled “ to take and certify the acknowledgment and proof of deeds to be recorded in” a sister State (see Bouv. L. Dict. tit. “Notary or Notary Public”), at least for the purposes of a motion governing the practice of the court.

The order appealed from should be affirmed, Avith costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.