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Fidelity Glass Co. v. Thatcher Manufacturing Co.

85 N.Y.S. 8 Court N.Y. App. Div. Decision date 1903-11-11 English

Delivered by PARKER, P. J.

Contents

Majority

p. 8
(88 App. Div. 287.)
FIDELITY GLASS CO. v. THATCHER MFG. CO.
(Supreme Court, Appellate Division, Third Department.
November 11, 1903.)

Headnote

1. Bills or Particulars—Counterclaim—Framing Reply.
Until a reply has been served by plaintiff, he is not entitled to a bill of particulars concerning a counterclaim, for the purpose of preparing for trial, where it is not needed to draw the reply.
Appeal from Special Term.
Action by the Fidelity Glass Company against the Thatcher Manufacturing Company. From an order granting to plaintiff a motion for a bill of particulars, defendant appeals.
Order modified.
p. 9
Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
Erwin J. Baldwin, for appellant.
Ginn & Murphy (Lowen E. Ginn, of counsel), for respondent.

The affidavit on the part of the plaintiff in this action claims that the bill of particulars is needed both for the purpose of enabling it to frame its reply, and also for the purpose of preparing for the trial. It is manifest from the pleadings and the record before us that the items for which such bill of particulars is asked are not needed in order to enable the plaintiff to reply. Each one of the several demands set up by way of counterclaim can be fully put at issue without the aid of any of the facts which the plaintiff seeks to so ascertain. The bill of particulars should not, therefore, be ordered for that purpose. Wolff v. Kaufman, 65 App. Div. 29 , 72 N. Y. Supp. 500 .

With reference to those particulars which may be needed for the purpose of preparing for trial, it has been held that, until a reply has been served, no bill of particulars concerning a counterclaim will be ordered; that, until an issue over the counterclaim has actually been made, it is premature to ask for the information necessary to prepare for trial of the same. American Credit Indemnity Co. v. Bondy, 17 App. Div. 328 , 45 N. Y. Supp. 267 ; Watertown Paper Co. v. West, 3 App. Div. 451 , 38 N. Y. Supp. 229 . Under these authorities, it was error for the Special Term to require the statement provided for in the third, fourth, and fifth paragraphs of the order appealed from. Those all relate to matters set up by way of counterclaim.

But as to the items required by the first and second paragraphs of such order, they refer merely to new matter set up by way of a defense to the plaintiff’s claim. The issue as to them was fully framed, although no reply be ever served; and as, in my judgment, they require the defendant to furnish no more than the plaintiff is fairly entitled to be informed of before preparing for trial, so much of such order must be permitted to stand.

The order appealed from should be modified by striking therefrom the third, fourth, and fifth paragraphs, and, as so modified, affirmed,, without costs to either party. All concur.

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