Riker v. Erlanger — 87 A.D. 137

Majority

p. 137

William B. Riker, Respondent, v. Nathan Erlanger (Sued as N. Erlanger), Appellant, Impleaded with American Stave Machine Company and Others.

Headnote

Bill of particulars — the names of the officers of a corporation alleged to ham conspired against the plaintiff and of his agents to whom fraudulent statements were made, required. '

In an action brought to recover damages alleged to have been sustained by the plaintiff through a conspiracy entered into between the defendants, one of whom was a corporation, the complaint alleged that the defendant corporation “by and through its officers, agents and servants, did * * * conspiré” to defraud him. It also alleged that the fraudulent statements and representations were made to the plaintiff “ or his duly authorized agent or agents.” Held, that an individual defendant was entitled to a bill of particulars apprising him of the names of the officers, agents and servants of the corporation referred to in the allegation first above quoted;

That he was also entitled to a bill of particulars, apprising him of the names of the agents of the plaintiff referred to in the allegation last quoted.

Appeal by the defendant, Nathan Erlanger (sued as N. Erlanger), 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 July, 1903, denying the said defendant’s motion for a bill of particulars.

I. Henry Harris, for the appellant.

George W. Schoonmaker, for the respondent.

The appellant was hot entitled to all the particulars which he sought; but two of those which he demanded should have been supplied. The action is to recover $5,000, of which the' plaintiff alleges he was defrauded through a conspiracy entered into between the defendants.. In the c'omplaint' he alleges among other things that the defendant machine company “ by and through its officers, agents and servants, did * * ,* conspire” to defraud him. If by this it is intended to restate what in another place is alleged, that the officers referred to were these defendants, then it will be easy for the plaintiff to so state; and if there are other officers and agents of the company whom it is claimed took part in the conspiracy, then the appellant is entitled to have their names given. '

So, too, with respect to the allegations which the plaintiff makes that, the false and fraudulent statements and representations were made to him “ or his duly authorized agent or agents,” the defendant is entitled to know the names of such agent or agents to the end that he may not be surprised upon the trial as to the identity of the persons to whom it is claimed the representations were made.

Except .in these two respects the application was properly denied. The order accordingly should be modified by requiring the plaintiff to furnish these particulars, and as so modified affirmed, without costs.

Present—Van Brunt, P. J., Patterson, O’Brien, Hatch and Laughlin, JJ.

Order modified as stated in opinion, and as modified affirmed, without costs.