Humphry v. Cottleyou

Headnote

Practice upfmther^bUl^ of

under an or-of1 particulars! must state the tune when the items of his dewithes much particularity as cmmoTgivethe give the month year, &c. ’

This was an action of trover. June 2d, 1842, an order was made by the Hon. J. T. Irving, first Judge, &c. requir*£ the plaintiffs to show cause before him at his office, at the City Hall, N. York, on the 10th, why they should not deliver to the defendant, or his attorney, an account in writing 0f the particulars of the plaintiffs’ demand. This order was _ „ , served on the agent of the plaintiffs’ attorney, but did npt rea°h him till the 12th. On the 10th, the order was made absolute, that the plaintiffs deliver a bill of particulars to the defendant or his attorney ; and that in the mean time all PI0cee^n§s on the part of the plaintiffs be stayed. This order being duly served, the plaintiffs’ attorney delivered a bill, which, after the title of the cause, ran thus; “ And the said plaintiffs, in pursuance of an order of the Hon. John T. Irving, deliver the following account and particulars for which this suit is brought, that is to say: for 2 sticks of timber 24 inches square, 70 or 80 feet long, 100 sticks of round hemlock and pine timber called dock sticks,” &c. proceeding in this form, without giving dates, or mentioning any time, within which the plaintiffs’ claims for the several items arose. On the 26th July, the Judge made an order for a further bill of particulars, requiring the plaintiffs to state the

precise date and times when the several articles specified in the declaration came to the defendant’s possession, or were converted by him. After this, the plaintiffs’ attorney made an affidavit that he had conferred with his clients, and from the facts he had gathered from them, and by a conversation with the witnesses, he could not comply Avith the last order, so far as to give the precise dates and times when the articles specified in the declaration came to the defendant’s hands or were converted to his use. Upon this affidavit and the above facts,

A motion was now made to set aside the second order of the Judge. On the part of the defendant an affidavit was read to shoAV that a statement of the time Avas necessary to enable him to prepare for his defence.