Garfield National Bank v. Peck — 48 N.Y. St. Rep. 660

Majority

p. 660

The Garfield National Bank, App’lt, v. Nathan Peck et al., Resp’ts.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Bill of particulars—Assignment for creditors.

The complaint in an action to set aside an assignment for creditors alleged that it was made to hinder, delay and defraud creditors, and also alleged the secretion of assets by the assignors for their own use, omission of assets from the schedules and application of firm assets to purposes other than payment of firm debts. Meld, that the first allegation was all sufficient; that the others were mere evidence to establish the fraudulent intent; but that plaintiff by making them a part of the complaint asserted their materiality and could not allege their redundancy in answer to an application for a bill of particulars thereof.

<3. Same—Affidavit.

An allegation in the moving affidavit that the defendant is “ entirely ignorant" of the facts or to. what the complaint refers is sufficiently comprehensive to include a denial of each element tending to constitute knowledge or belief on the subject.

Appeal from an order directing plaintiff to serve upon George S. Hamlin, assignee, defendant, a bill of the particulars respecting •certain allegations of the complaint.

Action to annul, as fraudulent, a general assignment for the benefit of creditors, made by the defendants, Peck, Martin & Co., to the defendant George S. Hamlin.

John J. Adams, for app’lt; George S. Hamlin, for resp’ts.

This action was brought to have declared and annulled, as fraudulent and void, a general assignment for the benefit of creditors, made pursuant to the statute for such ■cases made and provided. The complaint charged “ that the said instrument purporting to be a general assignment was made by the said persons composing the firm of Peck, Martin Co. with intent to hinder, delay and defraud their creditors. including the plaintiff,” and then specifically alleged that the defendants, the oassignors, had, in contemplation of their assignment, paid over°to persons, not named, various sums of money of large amounts intended for their own future use and benefit; that they had omitted from their schedules of. assets valuable items of property not' described, except that it is alleged that among such property was an equity in certain real estate in East Seventy-sixth street in the city of New York; that they had con

p. 661

veyel to Harriet A. Martin, the wife of one of the assignors, certain premises on Edgecomb avenue for an inadequate consideration ; that they had withdrawn of the firm assets large sums of money which were used for purposes other than the liquidation of the firm’s liabilities, but the purposes to which said moneys are claimed to have been applied are not stated except in one instance; and that the assignment was not accompanied by an immediate and followed by an actual and continued change of possession of the property purporting to have been assigned thereby. Thereupon the assignee, George S. Hamlin, asserting his ignorance" of the secretion of any moneys or property by the assignors, the omission of any item of property from the schedules, and the application of firm assets for any purpose other than the payment of firm debts, and that he is unable, without being particularly informed as to the payments of money and items of property intended to be referred to by the plaintiff, to answer the allegations of the complaint or prepare for trial, moved that plaintiff be required to furnish him with a bill of the particulars of these matters.

The motion was opposed and an order was made requiririg plaintiff to serve upon defendants’ attorney a bill specifying the several sums of money alleged to have been paid over for the future use and benefit of the assignors and the persons to whom such several sums of money are claimed to have been paid; the several items of assets claimed to have been omitted from the schedules other than the real estate situated in East Seventy-sixth street, and the several sums of money claimed to have been withdrawn from the firm assets and applied to purposes other than the payment of firm debts, with the purposes to which such several sums of money are claimed to have been applied.

From this order the present appeal is taken.

It is urged as an objection to the order that compliance with it requires plaintiff to render a statement of the evidence by means of which the truth of the complaint is expected to be shown on the trial.

The office of a bill of particulars is, as counsel for the appellant justly contends, to amplify a pleading, not to require the disclosure of the evidence of a cause of action, defense or counterclaim, and that the order under review transcends its office respecting the necessary and material allegations of the complaint is due to the fact that the complaint contains unnecessary and redundant matter at which the bill of particulars is aimed. The ground upon which relief is asked is not “fraud,” but a “fraudulent intent ” in making the assignment, and the allegation that it was made “ with intent to hinder, delay and defraud creditors ” was all sufficient. Nat. Union Bank of Dover v. Reed, N. Y. Com. Pl., Gen. Term, January, 1891, 27 Abb. N. C., 5 ; 35 St. Rep., 572 . The secretion of moneys for the future use and benefit of the assignors, the omission of valuable assets from the schedules and the application of firm assets for purposes other than the payment of firm debts, are but evidence tending to establish a “fraudulent intent,” and the allegation of it was not wholly unneces

p. 662

sary, National Union Bank of Dover v. Reed, supra, but as a. re-asseveration of the “ fraudulent intent” also redundant. Redundancy, however, may be complained of .by the “ person aggrieved,” Code Civ. Pro., § 545, not by the author of it, and if defendant had interposed an answer containing matter responsive to similar matter in the complaint plaintiff could not have objected to it because of its redundancy. McIntyre v. Ogden, 17 Hun, 604 ; Royal Baking Powder Co. v. Jenkins, 2 Monthly Law Bull, 53. Having made the redundant matter a part of his complaint, plaintiff asserts its materiality, Cunard v. Francklyn, 111 N. Y., 513 ; 19 St. Rep., 641 , and invites the defendant to answer it and to prepare for trial upon it, and if because of the vagueness of the redundant matter defendant asks to be better informed so that his answer may be more comprehensive respecting it and he be the better prepared for trial upon it, plaintiff should not be heard to allege its redundancy, and thus preclude its refutation. It was entirely proper, therefore, for the judge who granted the order to treat the redundant matter as though it was a material- allegation of the' complaint, and viewed in that light the objection that it requires evidential, not issuable facts, will be dispelled.

So, also, if the redundant matter be regarded as necessary and material another objection to the order, that defendant Hamlin has equal means of obtaining the information sought, because of his relation with the assignors and because he has possession of their books and is also represented by their attorney, will disappear. Defendant assignors, in their business and private affiairs, may have made a great many payments and disposed of many items of property which do not appear in their schedules. Some of the payments may and others may not appear from their firm books. To which particular items of property, and to which payments does -the complaint refer ? And if it refers to payments appearing from the books, which of them ? These are the matters of which defendant Hamlin asks to be informed by the bill of particulars, because they are not to be ascertained from the complaint, and unless the plaintiff is confined to specific payments, and specific items of property, defendant’s answer to the complaint, and his preparation for trial must devolve upon him the wholly unnecessary presentation of a history of the assignors’ business and private affairs so minute in its details that it may include the payments and items of property to which the complaint means to refer.

A last objection to the order is made on the ground that the moving affidavit does not state that the defendant “has no knowledge or information sufficient to form a belief ” or “suspicion” as to the particulars asked for, but we regard the allegation that the defendant is “entirely ignorant” of the facts, or to what the complaint refers, as sufficiently comprehensive to include a 'denial of each element tending to constitute knowledge or belief upon the subject. The order should be affirmed, with costs.

Order affirmed, with costs.

Daly, Ch. J., concurs.