Patton v. Whitney — 5 N.Y. St. Rep. 845

Majority

p. 845

Henry Patton, as Assignee, etc., Resp’t, v. David Whitney, Jr., Appl’t.

(City Court of Brooklyn, General Term,

Filed September, 27, 1886.)

Headnote

PRACTICE — Bill oe particulars — Code Civ. Pro. § 531.

It is within the discretion of the court under Code Civ. Pro., § 531, to order a hill of particulars of the frauds alleged to have been committed in connection with the transfer of property.

Appeal from an order for defendant to serve a bill of particulars.

This is an action originally brought by the plaintiff against the sheriff of the county of Kings, to recover the sum of fifty-five thousand dollars, for the alleged unlawful conversion of certain personal property, formerly belonging to Oscar F. Hawley, and which is claimed by the plaintiff under an assignment to him by said Hawley, in trust for the benefit of his creditors. The defendant justified'the seizure under an execution issued by David Whitney, jr., a judgment creditor of said Hawley, upon the ground that the alleged assignment was fraudulent and void, and was made by Hawley with fraudulent intent. Subsequently - to the joining of issue the said judgment creditor was by an order of this court substituted as defendant in place of the sheriff. On plaintiff’s motion the special term made an order requiring the defendant to furnish a bill of particulars, showing generally the grounds upon which he will claim upon the trial of this

p. 846

action that, the assignment referred to in the complaint in this action is fraudulent, and was made with fraudulent intent.

And it is further ordered that if the defendant shall claim that said assignor has secreted a part of his estate with intent to prevent it from coming to the hands of the assignee, that the defendant shall specify what property, whether real or personal, was transferred with a view to subtract it from the assignee. And it is further ordered that if the defendant shall claim that any of the prefer enees contained m the said assignment, are fraudulent or fictitious, that he shall specify the same in said bill of particulars, etc. And that at any time before the trial of the action, the defendant may apply on notice of two days to amend his bill of particulars, and the plaintiff on like notice for a further bill. .From this order defendant appealed to the general term.

Jackson Burr, for respt’s ; Hawes Bishop, for appl’t.

The case of Dwight v. Germania Life Ins. Co. settles the power of the court to make the order appealed from. The term “ claim” in § 531 of the Code includes whatever is set up by a defendant, based upon facts alleged as a reason why judgment should not go against him.

We think the discretion of the court was properly exercised in this case. The order is very carefully guarded, and, leaves the defendant the opportunity of setting up any ground of avoiding the assignment, which may be discovered by him almost down to the day of trial. It does not require him to disclose the ■evidence upon which he relies, but only to state in what respect it is claimed the assignment is fraudulent. The terms of the order are only fair to the plaintiff and quite liberal to the defendant. The order should be affirmed with ten dollars costs of appeal and disbursements.

Yan Wyck, J., concurs.