Oatman v. Watrous — 99 A.D. 254

Majority

p. 254

Rachel E. Oatman, Appellant, v. Harry W. Watrous and Allen W. Adams, as Executors, etc., of Walter W. Watrous, Deceased, Respondents.

Headnote

Action against executors to recover for dresses furnished to the wife of their testator— a hill of particulars, making a full disclosure, will he ordered — to avoid the imputation of contempt of court, a condition should he inserted that evidence he precluded of matters not set forth.

In an action brought to recover for dresses .and wearing apparel alleged to have been furnished by the plaintiff to the wife of the defendants’ testator,

Held, that, in view of the fact that the defendants were executors who were necessarily unfamiliar with the details of the transactions upon which the

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action was based, the plaintiff should be required, in such bill oí particulars, to make as full a disclosure to the defendants of the facts upon which her claim was based as she was able to do;

That the defendants were entitled to a bill of particulars stating whether the alleged marriage between the woman to whom the goods were furnished and the defendants’ testator was or was not a ceremonial one, and the dates at which and places where the credit of the testator was specifically pledged to the plaintiff for such goods;

That there should, however, be incorporated in the order a provision that, upon the failure of the plaintiff to furnish the particulars required, she would be precluded from giving evidence in regard to such matters upon the trial, for the reason that, in the absence of such a provision in the order, the plaintiff’s failure to furnish the particulars would seemingly render her guilty of contempt of court.

Appeal by the plaintiff, Rachel E. Oatman, 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 17th day of Hay, 1904, directing the plaintiff to furnish a bill of particulars.

Franklin Pierce, for the appellant.

Duane P. Cobb, for the respondents.

The plaintiff brought an action to recover from the executors of Walter W. Watrous, deceased, for dresses and wearing apparel furnished, as alleged, to his wife. The defendants demanded, in addition to the facts and items set forth in the complaint, a bill of particulars, and it is from the order made at Special Term directing the plaintiff to serve upon the defendants such a bill that the plaintiff appeals.

The terms of the order are drastic, but considering the fact that defendants are executors, necessarily unfamiliar with the details of the transactions, we think that to the extent that the plaintiff can furnish particulars she should be required to do so.

As to many of the items it is evident that more definite information can be given as to the name or kind of the garment and the materials of which it was made. So, too, the defendants are entitled to be informed with respect to whether the alleged marriage between the one to whom the articles were furnished and the defendants’

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testator, was or was not a ceremonial one, and the dates and places where the credit of said Walter W. Watrous was specifically pledged to the plaintiff for said goods should be given as required by the 3d paragraph of the order. It may be that a motion to make the complaint more definite and certain would have obviated the uncertainty as to the theory upon which the plaintiff is proceeding to hold the defendants liable, but the same end will be reached if the particulars are furnished as directed.

In order to prevent surprise upon the trial, the plaintiff should be required to make as full a disclosure to defendants of the facts upon which her claim is based as she is able, and the question of the extent to which she may be enabled to give all the particulars directed can only be determined when, after furnishing the bill of particulars, the question will arise either upon a motion for a further bill of particulars or upon the trial of the action.

We think, however, that pursuant to section 531 of the Code of Civil Procedure, the form of the order should be modified so that, instead of directing the particulars in any event to be furnished — which may be impracticable or impossible ■—■ there should be incorporated in the order a provision that, upon failure to give such particulars, the plaintiff will be precluded from giving evidence upon the trial. As the order stands the failure to obey the direction of the court to furnish the information would seemingly leave the plaintiff in a position to be proceeded against as for a contempt, whereas the Code of Civil Procedure (§ 531) itself prescribes the penalty, that, unless the particulars are furnished, the party refusing to furnish them shall be precluded from giving evidence of the account upon the trial.

The order should be modified accordingly and as so modified should be affirmed, without costs.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

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