Bennett v. Wardell — 6 N.Y. St. Rep. 767

Majority

p. 767

Albert V. B. Bennett, App’lt, v. Margaret A. Wardell, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

Bill of particulars—When plaintiff will not be required to give.

The complaint in an action for the partition of real property alleged the plaintiffs and some of the defendants to be tenants in common, but that certain others claimed an interest in the subject of the action, under an apparent devise, which was void. Held, that the plaintiff could not be required to serve a bill of particulars stating the particular grounds upon which he claimed the devise to be void.

Lansing & Judge, for app’lt; Morris & Pearsall, for resp’t.

This is an action for the partition of real property, and the complaint alleges the plaintiff and some of the defendants to be tenants in common, but that the defendants Wardell claim an interest in the premises under an apparent devise, which is void.

The defendants made a motion and obtained an order requiring the plaintiff to serve abill of particulars stating the particular grounds upon which it is claimed the devise stated in the complaint is void.

The plaintiff has appealed from the order and it cannot be sustained.

If the plaintiff made an effort to comply with the requirements of the order appealed from, he could only furnish his arguments and legal reasons and conclusions upon which he believes the devise to be void.

¡No bill of particulars of the claim of the plaintiff can be furnished, for he sets up no claim. He merely asserts that the defendants Wardell have no claim.

p. 768

_ The case is, therefore, not a case' in which a bill of particulars should be required.

_ The order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Pratt, J., not sitting.