Cluff v. Thompson

Headnote

Practice—Bill of particulars—When ordered.

The defendant relied on the claim that his status had been changed, and" that he had ceased to act as executor, and had assumed the office of trustee, and had acted as such for thirteen years, with the consent of the plaintiff. Held, the plaintiff was entitled to a bill of particulars of the acts of herself, or any one else, which caused or contributed to the results, asserted by defendant.

Appeal from an order made at special term requiring defendant Thompson to furnish a bill of particulars of the facts, by reason of which Edward E. Tower, executor of Burgess Cluff, ceased to act as executor, and entered on

his duties as trustee in respect to the property referred to in the complaint.

This is an appeal from a decision of Mr. Justice Freedman requiring defendant, Thompson, to give a bill of particulars.

The action was brought upon an executor’s bond, upon which bond defendants were the sureties, and whose condition was the executor’s obedience to the surrogate’s orders. It was brought to recover an amount with which the principal, one Tower, had been charged by a decree of the surrogate’s court, entered September 30, 1886, he being charged therewith partly on the ground of his disobedience to a decree of the surrogate made in 1873, and partly as costs of the proceedings taken to ascertain such disobedience. The principal ground of defense was a claim that Tower had theretofore been discharged as executor, and that his relation to the fund was that of trustee, although .the surrogate in terms and advisedly charges him “as executor.”

The original answer set forth as affirmative defense a claim that Tower had been discharged as executor (and defendant thus discharged as surety) by the terms of the will of the deceased and of the decree of 1873 above mentioned. The amended answer, while retaining this defense, added-also the following passage not in the original: “And thereupon the said Tower did retain the said sum in his hands as such trustee under and by virtue of the provisions of said will, and entered upon his duties as trustee in respect to such property and moneys, and ceased to act as executor in respect thereto, and by and with the assent and concurrence of said plaintiff acted as such trustee for a period of many years, to wit, thirteen years, and that any loss that accrued to said estate was caused by the loches and neglect of said plaintiff in not calling said Tower to account as such trustee.”

Plaintiff moved in the alternative for a bill of particulars of a portion of this passage, or to strike it all out as irrelevant. The former relief was granted, and the defendant ordered to state the facts upon which the pleader’s conclusion that Tower had ceased to act as executor is based, as also the acts by which plaintiff is claimed to have assented to the change of status.