Williams v. Folsom

The plaintiffs were the owners of the property known as The Baltimore, situated on East Fortieth street in the city of New York. It was placed in the hands of the defendants, as real estate agents, for sale. And the complaint alleges that by means of fraudulent representations and concealments made by them to and from the plaintiff Louisa Williams, who acted as well for the other plaintiffs as for herself, she was induced to enter into a contract for the sale of the property to Jessie Folsom, the wife of one of the defendants, for a price much less than could have been obtained by the defendants for the property. It is then particularized in the complaint that they circulated rumora intended to keep away purchasers and render it difficult to sell the property ; that they failed to bring either of the plaintiffs in contact with persons to buy it, and purposely refrained from apprising the plaintiffs of persons who thought favorably of and who might have purchased the property. It is further alleged that they had received offers for the property not communicated to the plaintiffs, but which they concealed from them. And it is as to these allegations that the application was made for a bill of particulars.

It does not appear from the complaint otherwise than inferentially that the plaintiffs did in fact convey the property to Jessie Folsom. But as she is stated to have made a deed of it to Fred I. Stone within forty-eight hours after the contract of the plaintiffs had been signed, it is to be presumed that a proper conveyance had been made by them and that is in fact admitted by the answer. The sale to Stone is averred to have been made for the price of $13,000 in advance of that paid to the plaintiffs, a circumstance which, if it exists, indicates the probability that the defendants are chargeable with misconduct in obtaining the conveyance to Mrs. Folsom.

But to place them in the position where they may be able understandingly to meet all the plaintiffs’ charges, they are entitled to know who the persons are from whom it is expected to prove that they had received offers for the property which were withheld from the plaintiffs and among whom they circulated the rumors calculated to render the sale of the property difficult. This information will enable them to understand the case they may be expected to meet at the trial. And without it they will not be in that position. For it is not to be assumed that they already knew, or may infer, to whom these allegations are intended to refer, as long as that has been denied by the answer. Tilton v. Beecher, 59 N. Y., 177 .

Where material allegations are obscure and indefinite, as these are, the settled practice is to reduce them to reasonable certainty by the service of a bill of particulars. Murray v. Mabie, 55 Hun, 38 ; 28 N. Y. State Rep., 308; Post Express Co. v. Adams, 55 Hun, 35 ; 28 N. Y. State Rep., 891; Cunard v. Francklyn, 111 N. Y., 511 ; 19 N. Y. State Rep., 641. And to the extent of supplying the defendants with the names of the persons in these allegations intended to be referred to, a bill of particulars should be served by the plaintiffs. In other respects the complaint seems to supply

The order should be reversed and an order entered requiring the service of these particulars within twenty days after notice of this decision. But as the motion was very much more extended, the costs should abide the result of the action.

Van Brunt, P. J., and Brady, J., concur.