Hayes v. St. Mary's Lodging House — 69 N.Y. St. Rep. 109

Majority

p. 109

Esther Hayes, Resp’t, v. St. Mary's Lodging House, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Bill of particulars—Whex.

A bill of particulars will not be directed as to matters which are within the applicant’s knowledge, nor for the purpose of ascertaining what proofs the adverse party intends to introduce.

Appeal from a motion, granting a bill of particulars.

Turner, MeClure & Rolston (David McGlure, of counsel), for app’lt; Spink & Martin, for resp’t

This is an appeal from an order directing the defendant to serve a bill of particulars. The action is brought for the recovery of the sum of of $3,000, alleged to be due the plaintiff on account of two loans made to the defendant. The answer alleges that the defendant is a charitable institution ; that for about six years prior to March, 1893, the plaintiff was connected with the Home as assistant superintendent, and through the confidential relations which she sustained to its managers she was allowed to receive and control money received for the benefit of the Home; that on or about the 20th day of May, 1891, the plaintiff used the funds so received by her, which were known to her to be the funds of the defendant, amounting to the sum of $8,500, without the knowledge or consent of the defendant, and wrongfully invested such funds in the purchase of real property in the city of Brooklyn, the title to which was taken in her own name; that the plaintiff purchased the said real property with the funds so received by her for the benefit of the defendant, and that the loans mentioned in the complaint were made on the real property which she so purchased with the funds of the defendant. It is also alleged in the answer that the plaintiff never accounted to the defendant for the moneys which she so received, and that she has refused to convey to the defendant the property purchased by her, as she had agreed to do. That an action is now pending to compel the plaintiff to account for the funds received by her, and to compel her to convey to the defendant the real property purchased by her as aforesaid.

The order from which the appeal is taken required the defendant to furnish a bill of particulars specifying—First, each specific sum of its money which it claims the plaintiff received; second, the date when it claims each sum was so received; third, the person or persons from whom it claims each sum was so received. While it is true the plaintiff is charged with receiving money from the defendant, yet no claim is made against her by way of counterclaim, and the defendant makes no demand for judgment against her. The allegations in the answer are made to show that trust relations existed between the parties; that the plaintiff had used

p. 110

the money of the defendant to purchase real property, which she had mortgaged to raise the money she loaned to the defendant; that the money so loaned belonged in equity to the defendant, and therefore cannot be recovered from it. If this defense fails, the plaintiff will recover because there is no denial of the loans. Moreover, if the affidavit of the plaintiff that the charges made against her in the answer are each and all absolutely'and unqualifiedly false be true, then they cannot be proven. If they are true, the plaintiff knows the amounts of money she received, and the-time when the persons from whom they were received, as well as the defendant, and there is no reason why the defendant should be embarrassed upon the trial by confinement to minute specifications of its proofs. The accusation against the plaintiff is distinct, and the charge is plain. She knows perfectly well what claim the defendant makes against her, but what she really desires is_ to ascertain what proofs the defendant intends to introduce against her. That is not the office of the bill of particulars, and the defendant is under no obligation to furnish the evidence in defense of the-trial.

The order should be reversed, with $10 costs and disbursements, and the motion denied with $10 costs.

All concur.