Roberts v. Cullen — 40 N.Y. St. Rep. 672

Majority

p. 672

Edward Roberts, App’lt, v. John Cullen et al., Resp’ts.

(New York Common Pleas, General Term,

Filed November 4, 1891.)

Headnote

Bill of particulars—Ejectment.

In an action of ejectment plaintiff was required to furnish a hill of particulars of his claim, “ and of the facts upon which said claim is based.” Held, that the latter requirement was erroneous as requiring him to disclose the evidence by which he will substantiate his claim.

Action of ejectment. Appeal from an order directing plaintiff to furnish a bill of the particulars of his claim, “ and of the facts upon which said claim is based.”

Robert Hunter McGrath, Jr., for app’lt; Daniel Daly, for resp’ts.

We agree with the learned judge at special term that the authority of the court to require one party to an action to furnish to the other a bill of the particular’s of his claim extends to actions of ejectment; and that by means of such a bill the party may be directed to apprise the other of the particular land of which possession is sought to be recovered, and whether his-alleged right to recover possession is derived through grant, devise, descent, adverse possession or estoppel.

The order appealed from, however, goes further. It requires plaintiff to furnish defendants with a bill of particulars of his claim, “ and of the facts upon which said claim is based,” and as-to the language in parenthesis it is objectionable. The language referred to is susceptible of no other interpretation than that the plaintiff is thereby directed to supply defendants with a detailed statement of the means by which he will substantiate his claim of right to possession at the trial. Such a requirement calls for the' disclosure of the evidence and transcends the office of a bill of particulars.

Plaintiff is entitled to prove his right to recover possession by whatever lawful means may be at his command at the time of' trial, and if that right be curtailed by requiring him to furnish the defendants with a statement of the means of his proof to-the preclusion of evidence thereafter discovered, or of means the value as evidence of which was not known to him at the time of-compliance with the order, it is apparent that the hardship resulting to him would be as great, if not greater, than that which could be occasioned to the defendants by surprise at the trial when the indulgence of the court by postponement might, yet afford at least partial alleviation.

The order appealed from should be modified by striking therefrom the words “ and of the facts upon which said claim is-based,” and as so" modified the order is affirmed, without costs.

. Daly, Ch. J., concurs.