Haggerty v. Ryan — 40 N.Y.S. 384

Majority

p. 384

(17 Misc. Rep. 277)

HAGGERTY v. RYAN.

(City Court of New York, General Term.

June 30, 1896.)

Headnote

Appeal—Rendered Unavailing by Act of Defendant—Dismissal.

A.n appeal from an order denying a motion for a bill óf particulars to enable defendant to prepare his answer wall not be entertained where he has answered after denial of the motion.

Appeal from special term.

Action by Rose Haggerty against John Ryan. From so much of an order as denies defendant’s motion for a bill of particulars of the names of the persons in whose presence respondent alleges and intends to prove that the alleged false and defamatory utterances mentioned in the complaint were made, or that the complaint be made more definite and certain by so specifying, defendant appeals. Dismissed.

Argued before VAN WYCK, C. J., and CONLAN and O’DWYER, JJ.

James A. Ryan, for appellant.

A. H. Berrick, for respondent.

The defendant having moved before answer for a bill of particulars, it was necessary for him to show that the particulars were required to enable him to prepare his answer; and, it now appearing that he has answered since the making of the order on that motion, this court will not entertain the appeal, as, by his own act, defendant has deprived himself of any advantage to be gained by a reversal. Woodruff v. Austin (Sup.) 38 N. Y. Supp. 787 .

The defendant also asked, in the same motion, for the particulars, in order to prevent surprise, and be prepared for trial of the cause; but on that branch, the motion being made before issue joined, it was premature. Paper Co. v. West (Sup.) 38 N. Y. Supp. 229 ; Pots v. Herman, 7 Misc. Rep. 5 , 27 N. Y. Supp. 330 . The names of the person or persons in whose presence and hearing the words were spoken seem to us to be of grave importance, as otherwise the defendant, upon the trial, may be taken wholly by surprise, by the production of testimony he is wholly unprepared to explain or contradict otherwise than by his own denial; and we think it would be a proper exercise of discretion to direct a bill of particulars specifying the names of the person- or persons in whose presence the words are claimed to have been spoken. Stiebeling v. Lockhaus, 21 Hun, 457 . For this relief the defendant is granted leave to apply at special term.

The appeal must be dismissed, with $10 costs. All concur.