Govin v. De Miranda — 67 N.Y. St. Rep. 426

Majority

p. 426

Luz Diaz Govin, Resp’t, v. Luciana Govin De Miranda et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

1. Bill or particulars — Denial.

The fact that a motion for a bill of particulars has been denied before answer affords no ground for the denial of a similar motion after answer.

2. Same — Action to admeasure dower.

In an action for the admeasurement of dower, the defendant is entitled to a bill of particulars, stating whether the plaintiff’s marriage with the decedent was ceremonial, and, if so, when and where performed and by whom ; and, if a non-ceremonial marriage, when and where it was contracted.

Appeal from an order, denying a motion for a bill of particulars.

Cephas Brainerd, for app’lts; A. Kling, for resp’t.

This action is brought for the admeasurement of dower. The issue raised is as to the marriage of the plaintiff. A motion was made for a bill of particulars as to the date of the marriage, where it took place, the name or designation of the clergyman or magistrate who performed or celebrated such marriage, and the names of the witnesses and other persons present, and if such marriage was evidenced by any agreement in writing, that the plaintiff be required to produce and serve a copy thereof, or, if there were any agreement or settlement upon the plaintiff or release of dower, to state its terms. This motion was denied, and from the order thereupon entered this appeal is taken.

Prior to answer, a somewhat similar motion was made and denied; and it is claimed that this motion should be denied at the present time for the same reasons then advanced, and also upon the ground of loches. There does not seem to be any claim of loches in the .service of the notice of motion, but in the hearing of the motion. It may be said that the motion could not have dragged its weary length along without the active co-operation of both parties; and, if there has been loches upon one side in bringing the notice motion to argument, there has been equal loches upon the other side in not having the same disposed of. The fact that a motion had been denied before answer affords no ground for the denial of a similar motion after answer. In respect to the marriage, the defendant could answer without any bill of particulars. A simple

p. 427

denial of the marriage makes a complete issue, which will protect the defendant. It may, however, be necessary for the defendant in order to properly prepare for the trial, to be informed as to when and 'where and what kind of a marriage is claimed. If a party sues upon an ordinary contract, the defendant is entitled to know when and where it was made; and, if a party sues upon a contract of marriage, the defendant is equally entitled to the same information. The defendant in this action was entitled to know whether it was a ceremonial marriage, and, if so, when and where performed, and by whom; and if a nonceremonial marriage, when and where it was contracted. She probably was not entitled to be furnished with the names of the witnesses by which the plaintiff proposes to establish her cause of action, but the other matters above mentioned clearly come within the ordinary scope of bills of particulars.

The observations contained in the opinion handed down at the last term of this court on the determination of a similar motion in the case of Bullock v. Bullock, 66 St. Rep. 493 , may perhaps be applicable to the case at bar. We think that the motion should have been granted as far as indicated in this opinion. The service of a bill of particulars as above required should not in any way curtail the plaintiff’s right to introduce circumstantial evidence or evidence of admissions to establish such marriage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, as above stated.

All concur.