Chapman v. Wackerman — 82 N.Y. Sup. Ct. 285

Majority

p. 285

Emma J. Chapman, Respondent, v. Laura M. Wackerman, as Executrix, etc., of Sarah R. Torkington, Deceased, Appellant.

Headnote

Bill of pa/rticulars as to delivery, etc., of a promissoiy note — an order denying a motion for, is reviewable upon appeal —when it should be reversed.

Although the granting or withholding of an order to furnish a hill of particulars rests in the sound discretion of the court, such discretion is reviewahle upon appeal.

The circumstances considered which necessitate the reversal of an order denying the defendant’s motion for a hill of particulars in an action brought upon a promissory note, and the granting of the motion therefor requiring the plaintiff to disclose the name of the payee of the note in suit or the person to whom it was first delivered, together with the time and place of such delivery, and his-place of residence.

Appeal by the defendant, Laura M. ’Wackerman, as executrix, etc., of Sarah R. Torkington, deceased, from an order of the Supreme-Court, made at the Monroe County Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of August, 1893, denying the defendant’s motion for a bill of particulars.

George A. Ocornghcm, for the appellant.

Fanning <& Williams, for the respondent.

This action was brought upon a promissory note alleged to have been made by Mrs. S. R. Torkington, the defendant’s testatrix. The note is for the sum of $12,000, dated at Rochester, New Tork, July 6, 1889, and is payable *on demand to bearer at the office of George Rumble, Chicago, Illinois, or at Rochester, New York, with interest at six per cent per annum after date until paid.

p. 286

Tbe defendant, in her moving affidavit, states that sbe did not know of tlie existence of the note until tbe same wras presented to ber as executrix after tbe will of ber testatrix bad been admitted to-probate, and sbe asks for a bill of particulars setting forth : First, tbe particular time and place where tbe note set forth in tbe complaint was delivered to tbe payee thereof; second, the name and place of residence of said payee; third, tbe particular time and place, when and where said note was delivered or transferred to C. D. Bush; foiorth, a particular statement of tbe consideration for the transfer of said note by the payee thereof to said C. D. Bush.

As we have seen, tbe note is payable to bearer and does not name a payee. Tbe complaint does not disclose the name of tbe payee, but alleges that the note, at the time of tbe making thereof, was then and • there duly delivered to the payee therein named, who after-wards duly transferred the same for value to one C. D. Bush, and that C. D. Bush, prior to tbe commencement of this action, duly transferred tbe same to the plaintiff. It appears to us that under tbe facts presented tbe name of tbe payee, or tbe person to whom tbe note was delivered upon tbe making thereof, should be disclosed. It is undoubtedly true that tbe granting or withholding of tbe order to furnish a bill of particulars rests in the sound discretion of the court, but that discretion is reviewable here. The maker of the note is dead. The existence of the note was unknown to the defendant until it was presented as a claim against the estate of the deceased. The amount of the note is for more than the entire value of the real and personal property left by the testatrix, and it appears to us that tbe defendant should be given a reasonable opportunity to investigate the circumstances under which it was made in order to enable her to prepare ber defense. She cannot well have such an opportunity without knowing tbe name of tbe payee. (Matthews v. Hubbard, 47 N. Y. 428 ; Witkowski v. Paramore, 93 id. 467 ; Tilton v. Beecher, 59 id. 176; Childs v. Tuttle, 48 Hun, 228 ; Ball v. The Evening Post Publishing Co., 38 id. 11; Klock v. Brennan, 35 N. Y. St. Repr. 745 ; Smith v. Johnston, 22 id. 593.)

The order appealed from should be reversed, with- ten dollars costs and disbursements, and the motion for a bill of particulars requiring the plaintiff to disclose the name of the payee of the note,

p. 287

or tbe person to whom it ivas first delivered, together with the time and place of such delivery and his place of residence, should be granted.

Dwight, P. J., and Lewis, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion for a bill of particulars granted, requiring the plaintiff to disclose the name and place of residence of the payee of the note, or the person to whom it was first delivered, together with the time and place of such delivery.

Cases cited

Matthews v. Hubbard 47 N. Y. 428 N.Y. 1872-02-06 p. 286