Ward v. Littlejohn — 25 N.Y. St. Rep. 340

Majority

p. 340

Jessie L. Ward, et al., Resp’ts, v. DeWitt C. Littlejohn, Executor, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Bill of particulars—Affidavit mat be made by whom.

_ It is not essential that the affidavit to procure an additional hill of particulars shall be made by a party to the suit; it is - only necessary that it shall furnish the requisite proof to require an order to be made, and may be made by the attorney.

S. Same—Defective bill.

Where a first bill is defective, it is not necessary to make a new and specific demand; it is enough to return the bill furnished, and demand that a proper bill be furnished, or demand a further bill.

S. Same—When order made of course.

Where on an accounting it is material to plaintiff before going to trial to know the amounts paid and services rendered by defendants set up in a counterclaim, it is a matter of course to order a bill of particulars.

Appeal from an order of the Kings special term, granting plaintiff’s motion for a bill of particulars by defendants Littlejohn, and for a further bill of particulars of matter alleged in their so-called counterclaim.

The action is by plaintiffs as sole legatees and and devisees under the will of Richard Thompstin deceased, to open a voluntary settlement of the accounts of defendants, D. C. Littlejohn and Johnson, as executors, upon allegations of fraud and devestation of the estate suppressed at the time of the accounting, and to trace the trust property into the hands of D. 0. Littlejohn and his children, Lucy and Hugh, and compel them all to render an account. It incidentally seeks to set aside releases given upon the voluntary settlement of the accounts.

The affidavit on which the order for a further bill of particulars was granted was made by one of plaintiffs’ • attorneys.

p. 341

Lookwood & Hill, for app’lt; George G. & T. Reynolds for resp’ts.

It was not -essential that the affidavit should have been made by a party to the suit. It was only necessary that the affidavit should furnish the requisite proof to require the order to be made. Neither was it necessary to make a new and specific demand for further particulars; it was enough to return the bill already furnished, if it was defective, and demand that the previous order should be complied with and a proper bill furnished, or to demand a further bill. The merits of furnishing a bill of particulars had already been passed upon and acquiesced in by the defendants. The order appealed from, to furnish a further bill, was clearly in the discretion of the judge, and, we think, the discretion was properly exercised. Dwight v. Germania L. Ins. Co., 84 N. Y., 493 .

According to defendants’ theory, it is necessary to try the issue first, whether the plaintiffs are entitled to an accounting, and, if so, adjourn the case or send it to a referee. There is no law that requires a case to be tried by piecemeal.

It may be very material on the trial to know the amounts paid and services rendered by defendants and others, set up in the counter-claim, and it is important the plaintiffs should be informed in respect thereof before going to trial.

It is almost a matter of course to require a bill of particulars in cases like this. Liscomb v. Agate, 51 Hun, 291 ; 21 N. Y. State Rep., 303; Robinson v. Comer, 13 Hun, 291 ; Kelsey v. Sargent, 100 N. Y., 602 .

This order seems well sustained upon principle and authority, and must be affirmed, with costs and disbursements.

All concur. _