Lahey v. Kortright — 12 N.Y. St. Rep. 71

Majority

p. 71

Francis Lahey, App’lt, v. Gouverneur Kortright, individually and as Trustee, etc., Resp’t.

(New York Superior Court, General Term,

Filed December 9. 1887.)

Headnote

Bill of particulars—Code Crv. Pro., § 531—Action to recover purchase money—Title to real property.

The plaintiff agreed to purchase certain land, and paid part of the purchase price. He brought this action to recover the money so paid and the ■expense incurred in examining the title to said land, alleging that defendants were not capable of making a good title thereto. Held, that the defendants were entitled to a bill of particulars specifying the alleged defect in the title.

Appeal from an order requiring plaintiff to make the reply more definite and certain, and to furnish a bill of particulars.

This action was brought by plaintiff to compel the return to him of ten per cent of the purchase price of ■certain premises situated in the city of New York, bid off by him at auction, and to compel the return to him of the auctioneer’s fee and the fees of his counsel, and some other disbursements expended by him in connection with such sale and the examination of the title.

The main issue to be tried was whether or not the defendants, at the time and place specified for closing the sale, were capable of making a good title to the premises so sold.

The complaint avers that the defendants did not have title to or power or authority over the premises in question, other than such as were derived from a certain will, judgments and orders mentioned in the complaint.

The complaint gave certain extracts and clauses from this will, but it did not set out the whole will and omitted material parts of it. It recited only portions of the orders and judgments mentioned in it, and then charged, on information and belief, that the defendants could not convey a good title and the reply was substantially a re-statement of the matters stated in the complaint.

The motion, which was granted below, was made by defendants because they did not know what issues they would have to meet, and could not ascertain the application of many of the allegations in the reply, and because by reason of this uncertainty they were liable to surprise upon the trial, and could not properly prepare their case for trial.

They alleged they could not tell from the plaintiff’s pleadings whether he claimed that there was a want of power under the will of the testator to make sale, or whether it was claimed that the order appointing one Collins as trustee did not confer such power on him, or whether it was ■claimed that the orders appointing the defendants trustees

p. 72

were defective and did not confer such power on them, or whether it was claimed that the interlocutory judgment appointing commissioners to make partition, or the final judgment making partition were defective, or whether it was claimed that these judgments did not accomplish the result they were intended to accomplish, or whether it was claimed that "they were defective by reason of lack of jurisdiction or otherwise.

S. Jones, for app’lt; John M. Bowers, for resp’t.

Section 531 of the Code provides that the court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party.

Tilton v. Beecher ( 59 N. Y., 187 ) states the rule “That in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised beforehand of the particulars of the charge that he is expected to meet, the court has authority to compel the adverse party to specify those particulars so-far as in his power.”

To entitle plaintiff to recover in this action he must prove' that the defendant has failed to convey or offer to convey a. good title to the property which the plaintiff offered to purchase. Bayliss v. Stimson, 53 Superior Ct., 233.

The charge that defendant will be called to meet is that, the title that he offered to convey was not a good title to» the premises, and we are satisfied that it is necessary to a. fair trial of the action that plaintiff should be apprised beforehand of the specific defects in the title. Without such knowledge defendant may be surprised on the trial by the presentation of a defect which is not apparent, but which it is possible may be met or removed. If there is no substantial defect, plaintiff cannot be injured by being compelled to specify such defect.

The order appealed from, however, in addition to requiring a bill of particulars, requires that the defendant make* his reply more definite and certain or specify some particulars that he is required to furnish by the bill of particulars, ordered. Both of these remedies are not required, and we think from the nature of the action that the more appropriate method is to require the plaintiff to furnish the bill of particulars.

The order appealed from should be modified by striking out the provision for the service of an amended reply, and as so modified affirmed, without costs of this appeal to> either party.