Ottman v. Griffin — 60 N.Y. Sup. Ct. 164

Majority

p. 164

ROSA OTTMAN, Appellant, v. JOHN GRIFFIN and FERDINAND GARNJOST, Respondents.

Headnote

Bill of pa/rtiaula/rs — what statements can be required by the cowt.

In an action, brought to recover possession of six lady masquerade suits, which, it was alleged, were wrongfully detained by the defendants, the plaintiff was required to serve upon the defendants “ a bill of particulars, giving the number, description and value of the articles which she sues to recover, and the names of the persons to whom the same were delivered, and, as fully as she may be able, the residence of each such person, and, as to each such matter as she shall not be able so to state, she must state, in writing, that she does not know, and never did know, and why she has not now the knowledge.”

Held, that the plaintiff should not have been required to specify, in such bill of particulars, anything further than the number, description and value of the articles which she sought to recover, and that all the other requirements above specified should be stricken out of the order requiring such bill of particulars to be furnished.

Appeal by tlie plaintiff from an order of the City Court of Yonkers, requiring tire plaintiff to serve “ a bill of particular’s, giving tbe number, description and value of the articles which she sues to recover, and the names of the persons to whom the same were delivered, and, as fully as she may be able, the residence of each such person, and, as to each such matter as she shall not be able so to state, she must state, in writing, that she does not know, and never did know, and why she has not now the knowledge.”

The action was brought by the plaintiff, as sole lessee thereof, to recover the possession of six lady masquerade suits, of the price and value of $300, which, it is alleged in the complaint, were leased and hired by the plaintiff for the use and benefit of the defendants, on the express agreement the same should be returned by plaintiff on February 22, 1889, or the value thereof, with damages paid for their detention.

The defendants denied any knowledge or information sufficient to form a belief that the plaintiff is the sole lessee, and entitled to the immediate possession of six lady masquerade suits; denied that said suits were leased to them, or leased or hired by the plaintiff for their use and benefit, on the express agreement that the same should be returned by plaintiff on February 22, 1889, or the value thereof, with damages paid for their detention.

p. 165

Walter J. Donohue, for the appellant.

Arthur J. Burns, for the respondents.

This is an appeal from an order of the City Court of Yonkers, requiring the plaintiff to furnish a bill of particulars, and we think the order requires too much. It is the office of a bill of particulars to specify the items of the claim set up in a pleading and apprise the opposite party of the particulars of the claim. But a party cannot be required to furnish the evidence by which his claim is to be established upon the trial.

The defendants can require no more in this action than the number, description and value of the articles which the plaintiff seeks to recover. All the other requirements of the order should be stricken out, and as so modified the order should be affirmed, without costs to either party on this appeal.

Barnard, P. J., and Pratt, J., concurred.

Order for bill of particulars modified by limiting it to the number, description and. values of the articles claimed.