Horwitz v. North British & Mercantile Insurance

Majority

p. 375

HORWITZ v. NORTH BRITISH & MERCANTILE INS. CO. OF LONDON & EDINBURGH.

(No. 6394.)

(Supreme Court, Appellate Division, First Department.

December 4, 1914.)

Headnote

Insurance (§ 644^[1] )—Actions on Policies—Pleading—Bill or Particulars —Right to.

In an action on a fire policy, plaintiff cannot complain of an order requiring service of a bill of particulars specifying the items of property claimed to have been destroyed, the time and place of purchase, and the price paid, together with the value at the time of the fire.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1625; Dec. Dig. . Dig. § 644.*]

Appeal from Special Term, New York County. .

Action by Charles Horwitz against the North British & Mercantile Insurance Company of Dondon & Edinburgh. From an order granting a motion for a bill of particulars, plaintiff appeals. Order modified and affirmed.

See, also, 149 N. Y. Supp. 1088 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Otto C. Sommerich, of New York City, for appellant.

C. A. Levy, of New York City, for respondent.

Action upon a policy of fire insurance to recover the value of merchandise alleged to have been destroyed. After issue had been joined, upon defendant’s motion, the plaintiff was ordered to serve a bill of particulars. He appeals from so much of the order as requires him to state the items of property claimed to have been destroyed, the time when and place where purchased, the price paid therefor, and the value of the same at the time of the fire.

p. 376

It is no hardship upon the plaintiff to require him to give the defendant the information asked, if he can do so. If he cannot give him all the information, then he should give as much as he can, and state why he cannot give the remainder.

The order appealed from, therefore, is modified, by requiring the plaintiff to give the defendant the information, or so much of it as he can, as above indicated, and, if he cannot give all of it, then give the reason why he cannot do so. As thus modified, the order is affirmed, without costs to either party. All concur.