Mosheim v. Pawn — 18 N.Y.S. 166

Majority

p. 166

Mosheim et al. v. Pawn et al.

(City Court of New York,

General Term.

March 10, 1892.)

Headnote

Bills op Particulars—When Required.

The authority of the court to order a bill of particulars should be exercised in furtherance of justice, and no person should be required, on pain of striking his pleading from the files, to state particulars which he swears he cannot furnish, when he gives sufficient reasons for his inability.

Appeal from special term.

Action by Julius E. Mosheim and others against Charles Pawn and others. From an order requiring a bill of particulars plaintiffs appeal.

Modified.

Argued before Ehrlich, C. J., and Van Wyck and Fitzsimons, JJ.

F. Bien, for appellants. D. McMahon, for respondents.

The authority of the court to order a bill of particulars, and to determine its extent, is not questioned. But the power should be exercised in furtherance of justice, and no person should be required to do that which it is impossible for him to do, under penalty of having his pleading stricken out. Ammidon v. Rubber Co., (Super. N. Y.) 14 N. Y. Supp. 769 . Some of the things the court below has ordered the plaintiffs to do they swear they cannot do, and their reasons why are given. The excuse seems satisfactory. The order appealed from should be modified by affirming the order-in so far as it directs the plaintiffs to give to the defendants the specific dates showing the year, month, and day when the payments were made, the separate amounts paid aggregating $6,340.88, and to furnish an account of the lot numbers, the goods sold-, and the amounts realized at the auction sale. In other respects the order appealed from will be reversed, without costs.

All concur