Mosheim v. Pawn — 44 N.Y. St. Rep. 792

Majority

p. 792

Julius E. Mosheim et al., App’lts, v. Charles Pawn et al., Resp’ts.

(City Court of New York, General Term,

Filed March 10, 1892.)

Headnote

Bill of pahticulabs.

The power to order a hill of particulars should be exercised in furtherance of justice, and no person should be required to do that which it is impossible for him to do, under penalty of having his pleading stricken out.

Appeal from order requiring plaintiffs to furnish a bill of particulars.

F. Bien, for app’lts; D. McMahon, for resp’ts.

The authority of the court to order.a bill of particulars and to determine its extent is not questioned.

But the power should be exercised in furtherance of justice, and no person should be required to do that which it is impossible for him to do, under penalty of having his pleading stricken out. Ammidon v. Century R. Co., 39 St. Rep., 350 ; 14 Supp., 768.

Some of the things the court below has ordered the plaintiffs to do they swear they cannot do, and their reasons why are given.

The excuse seems satisfactory. The order appealed from should be modified by affirming the order, in so far as it directs the plaintiffs to give to the defendants the specific dates showing the year, month and day when the payments were made, the separate amounts paid aggregating $6,340.88, and to furnish an account of the lot numbers, the goods sold and the amounts realized at the auction sale.

In other respects the order appealed from will be reversed, without costs.

Van Wyck and Fitzsimons, JJ., concur.