Hamilton v. American Vote Registering Mach. Co.

Majority

p. 595

(24 App. Div. 544.)

HAMILTON v. AMERICAN VOTE REGISTERING MACH. CO. et al.

(Supreme Court, Appellate Division, Fourth Department.

February 6, 1898.)

Headnote

1. Pleading—Bill of Particulars.

Where defendant would be left in ignorance of the charge made in the pleading, the court will require that the complaint be made more definite and certain, or a bill of particulars furnished.

2. Same.

An' allegation that when defendant purchased of a certain company a certain invention, and letters patent which might be issued thereon, it had knowledge of plaintiff’s contract with such company for the sale and purchase thereof, is sufficiently definite.

3. Same—Disclosing Evidence.

On a motion for a bill of particulars, the plaintiff should not be compelled to disclose the evidence by which he will substantiate the allegation of his complaint, which clearly states the claim he makes against defendant.

Appeal from special term.

Action by Arthur S. Hamilton against the American Vote Registering Machine Company and another. Appeal from that part of an order which directs the plaintiff to furnish a bill of particulars setting forth “the circumstances, letters, conversations, or other methods of information, by which it is claimed that the defendant the United States Voting Machine Company had knowledge of any agreement made by the defendant the American Vote Registering Machine Company with the plaintiff, as alleged in paragraph 6 of the complaint, to

p. 596

gether with the names oí the person or persons communicating such knowledge or information to the defendant, and the times and places when and where such knowledge or information was communicated to the defendant.”

Reversed.

Argued before HARBIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

David Hays, for appellant.

W. A. Southerland, for respondents.

It is the province of the complaint to inform the defendant of the specific acts constituting the alleged wrong, and to enable the defendant to know what the plaintiff’s charge against him is. And, although a complaint relates to acts of a defendant which must be presumed to have been within his knowledge, yet, if the specific acts constituting the wrong complained of are not stated by the pleader, then further particulars are necessary, in order that the defendant may be definitely advised of the charge made against him. Where the defendant would be left in ignorance of the specific charge made, or attempted to be made, in' the pleading, then the court will require, by order, that the complaint be made more definite and certain, or a bill of particulars furnished of plaintiff’s charge, in order that the defendant may prepare to meet it on the trial. This is a familiar rule, and the cases-cited by respondents’ counsel are only declaratory of this rule, and do not extend it. In the case at bar, we think the rule of pleading, in tbe respect alluded to, has been complied with, and that the allegation which defendant complains of meets the requirements of the rule of pleading governing such cases. The allegation is that when the defendant the United States Voting Machine Company purchased of the American Vote Registering Machine Company the invention relating to voting machines, and the letters patent which might be issued thereon, it had knowledge of the plaintiff’s contract with the American Vote Registering Machine Company for the sale and purchase thereof. There is no indefiniteness or uncertainty in the charge thus made. The specific proposition is fully and fairly stated, and the defendant is notified of the claim of plaintiff. The latter has made this allegation in a complaint verified by him. There is no authority given to the courts, either by statute or by decisions, to compel the plaintiff in a case like the one at bar to set forth in a bill of particulars the sources or character of the information from which he derived his knowledge of the fact alleged in his complaint. The language employed in the opinion of the court in Newell v. Butler, 38 Hun, 104 , is applicable to the question under consideration:

“The result oí the numerous reported adjudications relating to the scope and nature oí a bill oí particulars is that its only proper office is to give information of the specific proposition tor which the pleader contends in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition. Where the original pleading itself states the propositions or facts relied upon so specifically and particularly as that to require the party pleading to give further information in reference thereto would be to force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for.”

p. 597

So, here, the plaintiff, in order to fulfill the requirements of that portion of the order appealed from, would necessarily be compelled to disclose the evidence by which he must substantiate the allegation of his complaint, which clearly and definitely states the specific proposition or claim which he makes against the defendant. This he should not be compelled to do.

So much of the order as is appealed from is reversed, with $10 costs and disbursements.