Schwartz v. Green — 38 N.Y. St. Rep. 569

Majority

p. 569

Joseph D. Schwartz, Resp’t, v. Theodore C. Green, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

1. Bill of particulars.

_ It is the duty of a party on demand to serve the best possible hill of particulars, and if the same is not satisfactory, a motion may he made to compel the exhibition of another or further bill. The provision of the Code cannot he defeated by a mere allegation on the motion to compel the rendering of some bill that none can be made out.

2. Same—Slander.

In an action for slander of plaintiff’s daughter where the defense is that the daughter was of had character, and had carnal intercourse on certain days named, and divers other times at places and with persons unknown to defendant, the plaintiff is entitled to a bill of particulars of such defense, and it is no answer to an application there, for that the information is within the knowledge and leach of plaintiff, as his daughter, who made an affidavit in the case, could disclose the same, especially where her affidavit states that she never had illicit connection with any person except the defendant.

Appeal from an order of the Monroe special term, dated February 6,1891, entered in Steuben county February 9,1891, direct

p. 570

ing the defendant to serve a bill of particulars of the matters set up in the answer.

G. N. Orcutt, for app’lt; J. H. & C. W. Stevens, for resp’t.

This action was brought to recover damages for the seduction of the plaintiff’s daughter.

The answer is: (1) A general denial. (2) An allegation that at the time stated in the complaint, .and for a long time prior thereto, and since that time, the plaintiff’s daughter was a lewd, bawdy and licentious woman of a generally bad and immoral character, and so reputed to be; that on the two days named in the answer at some place or places in the city of Hornellsville, but at what particular place the defendant alleges he is unable to state, this woman had carnal intercourse with a man whose name was unknown to the defendant; that at divers other places in the city of Hornellsville, and at various other times, between the first day of January, 1889, and the first day of December, 1889, but at what particular times and places the defendant says he is unable to state, she had carnal intercourse with other persons unknown to the defendant

Section 531 of the Code of Civil Procedure 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.”

It is claimed, however, by counsel for the appellant, that he cannot furnish the bill of particulars for the reason that he is unable at present to give the times and places and names of the persons more definitely than he already has in the ahswer, but that he hopes to be able to do so before the trial of this case.

Such objections cannot prevail against the clear right that the plaintiff has to the bill of particulars demanded, particularly since the decision of the case of Tilton v. Beecher, 59 N. Y., 176 . It is the duty of the defendant, as was held in the case of the City of Rochester v. McDowell, 12 N. Y. Supp., 414 ; 35 N. Y. State Rep., 538, on demand, to serve the best possible bill of particulars, and if the same was not satisfactory a motion might be made to compel the exhibition of another or further bill; that the provision of the Code cannot be defeated by mere allegation on the motion to compel the rendering of some bill that none can be made out. It is the duty of the defendant to prepare such particulars as he can, then if objection is made thereto the whole question may be presented to the court upon its merits in accordance with the ordinary rules of practice as contemplated by the provisions of the Code.

But it is further argued that the defendant’s daughter, who has made an affidavit in the case, in her father’s behalf, has all the knowledge which the plaintiff seeks, and she can disclose the same, and that consequently the information sought is within the knowledge and' reach of the plaintiff. This argument would be, in any case, somewhat fallacious, but under the facts disclosed in these appeal papers it is shown by the affidavit of the young woman that she never had illicit connection with any person except the defendant It is not reasonable, therefore, to argue from

p. 571

this that the plaintiff must be prepared to meet the allegations in the answer without further information, for, a party, in preparing for trial, particularly in cases of this character, where reputation and personal chastity are involved, must not only be ready to meet the facts as he understands them, but also to meet the many allegations, whether true or false, that are set up to defeat a recovery.

The order appealed from should be affirmed.

Dwight, P. J., concurs.