Majority
p. 698Rosa Ottmann, App’lt, v. John Griffin and Ano., Resp’ts. (Supreme Court, General Term, Second Department, Filed June 28, 1889.)
Headnote
Bill oe particulars—To what limited.In an action to recover certain chattels, Held, that the order requiring the plaintiff to furnish a bill of particulars, should be limited to the number, description and value of the articles sought to be recovered.
Appeal from an order of the city court of Yonkers, directing plaintiff to furnish a bill of particulars.
The complaint demands, judgment for $450, to wit, for the return of six masquerade suits, or their value, $300, and $150 damages. The original complaint, which was read on the motion, alleges that plaintiff sublet to the defendants thirty-six masquerade suits, of which she was the lessee, and which she (not the defendants) agreed to return or forfeit $1,800. She claims that six of the suits were not returned by defendants. The answer is a general denial.
The moving affidavit, verified by both defendants, avers that the chattels were never delivered to them, and that they do not know the quality of the chattels, the stuff of which the same were made, the styles or patterns thereof, the number of pieces of which the same consisted, or the age or condition thereof, or the names of the persons to whom the same were delivered, and that they cannot safely proceed to trial without a bill of particulars specifying those facts, and the value of each article separately.
p. 699
The order of the court is, that the bill be furnished by plaintiff, “ giving the number, description and value of the articles which she sues to recover, and the names of the persons to whom the same were delivered, and as fully as she may be able, the residence of each of such persons, and as to each of such matters as she shall not be able so to state, she must state in writing that she does not know and never did know, and why she has not knowledge.”
J. C. & W. J. Donohue, for app’lt; B. E. & A. J. Prime & Burns, for resp’ ts.
This is an appeal from an order of the city court of Yonkers, requiring the plaintiff to furnish a bill of particulars, and, we think, the order requires too much.
It is the office of a bill of particulars to specify the items of the claim set up in a pleading, and apprise the opposite party of the particulars of the claim. But a party cannot be required to furnish the evidence by which his claim is to be established upon the trial.
The defendant can require no more in this action than the number, description and value of the articles which the plaintiff seeks to recover. All the other requirements of the order should be stricken out, and, as so modified, the order should be affirmed, without costs to either party on this appeal.
All concur.