Bender v. Bender — 68 N.Y. St. Rep. 787

Majority

p. 787

Jessie H. Bender, Resp’t, v. Harry H. Bender, as Administrator, etc., App’lt

(Supreme Court, General Term, Third Department,

Filed July 6, 1895.)

Headnote

1. Bill of particulars — When hot granted.

The mere ignorance of an administrator as to whether his intestate owed a debt, evidenced by a written admission by the deceased, does not entitle him to a bill of particulars of the circumstances out of which the indebtedness arose.

p. 788

2. Same.

In the absence of proof that there is an answer to the complaint, a bill of particulars is never compelled.

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

The instrument sued on is as follows:

Whereas, I undersigned, Franklin W. Bender, am indebted to W. Howard Bender in the sum of one thousand dollars from March 1, 1881: Now, for securing the amount so due him, together with interest thereon, I, the said Franklin W. Bender, do hereby sell, assign, transfer, and convey unto the said W. Howard Bender sufficient of the moneys or property which I may be entitled to receive out of my father’s estate at his death to pay the aforesaid amount, together with interest thereon; and I do hereby authorize and empower the executor or executors of my said father’s estate, if any there should be appointed, to pay the said amount, with interest, to said W. Howard Bender, his heirs or assigns, and charge the same as against my portion in said estate; and, in the event of my father dying without a will, then I hereby authorize and empower the administrator or administratrix of his estate to pay said amount, and to charge the same against my portion of my father’s estate.

In witness whereof, I have hereunto set my hand and seal, this (19th) nineteenth day of March, eighteen hundred and eighty-one.

Franklin W. Bender. (L. S.)

Scherer & Downs (Robert G. Scherer, of counsel), for app’lt; Hun & Johnston (Marcus T. Hun, of counsel), for resp’t

— This action is brought upon a sealed instrument, a copy of which is fully set out in the complaint. The instrument is signed by. the defendant’s intestate. In it he acknowledges an indebtedness of $1,000 to the plaintiff’s assignor, and assigns to him sufficient of the moneys or property to which he may be entitled out of his father’s estate at his death to pay that sum, with interest, and directs the executors or administrators (as the case may be) to pay the same, and charge such payment against this portion of such estate. The complaint avers the death of the father leaving a last will, and that the portion of his estate bequeathed to the maker of the instrument is more than sufficient to pay the claim represented thereby. The maker of this instrument is dead, and the defendant is his administrator. Before answering, the defendant moved for a bill of particulars, which was denied, and this appeal is from the order denying such motion. The motion was made upon the complaint, and upon an affidavit of the defendant, which sets forth that he intends to defend the action, but is wholly ignorant of the particulars of the claim alleged in the complaint, and has no means of acquiring knowledge thereof sufficient to enable him to answer. There is nothing whatever stated in this affidavit tending to show that the defendant supposes there is any defense to the cause of action set forth in the complaint. The paper upon which the action-is brought is fully set forth in the

p. 789

complaint. It in terms confesses an indebtedness, and is under seal.

The mere ignorance of an administrator as to whether his intestate owed a-debt evidenced by a written admission of the deceased does not entitle him. to a bill of particulars of the circumstances out of which the indebtedness arose. Ray v. Manhattan Trust Co., 53 St. Rep. 566 ; Husson v. Oppenheimer, 45 St. Rep. 618 ; opinion of Pratt, J. ; Mertaga v. Bennett, 39 St. Rep. 367 . There is no pretense in these papers that there is any defense to the cause of action set out in the complaint. This motion is evidently an attempt on the part of the defendant to ascertain whether, by means of a bill of particulars, some defense may not be discovered of which at this time the defendant has neither knowledge nor information. This is not the office of a bill of particulars. The effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars is never compelled. Moreover, the defendant’s intestate was estopped by his seal to deny consideration of the instrument sued upon, and his personal representive is likewise estopped. Talbert v. Storum, 50 St. Rep. 267 .

The order should be affirmed, with $10 costs and printing disbursements.

Putnam. J., concurs; Herrick, J., not acting.