Majority
p. 654(14 Misc. Rep. 127.) OVIATT v. OVIATT. (Superior Court of New York City, Special Term. October, 1895.)
Headnote
Pleading—Bill of Particulars—Divorce.Where the complaint in an action for divorce on the ground of adultery names the places where the alleged acts of adultery were committed, and gives the name of one of the persons with whom such acts were alleged to have been committed, though the dates are somewhat indefinite, a bill of particulars will be denied, as the facts are peculiarly within the knowledge of- defendant.
p. 655
Action by Russell A. Oviatt against Nellie M. Oviatt for divorce. Defendant moves for bill of particulars. Denied.
A. M. Sanders, for plaintiff.
Nichols & Bacon, for defendant.
It does not seem to me that a bill of particulars should be ordered in this case. The action is for divorce, on the ground of adultery. The complaint names the places where the alleged acts of adultery were committed, and also gives the name of, at least, one of the alleged co-respondents. It is true that the dates are somewhat indefinite, but the information sought for lies peculiarly within the knowledge of the defendant, who seeks it; and there is little danger of undue surprise at the trial. The motion should therefore be denied. See Fink v. Jetter, 38 Hun, 163 . No costs.
Motion denied, without costs.