Hyperlawhypertext legal database Cadwell v. Goodenough 25 N.Y. Super. Ct. 706

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Cadwell v. Goodenough

25 N.Y. Super. Ct. 706 2 Rob. 706 Court N.Y. Super. Ct. English

Delivered by Moncrief, J.

Contents

Majority

p. 706
Cadwell vs. Goodenough.

Headnote

1. Even if the court has the power to order a bill of particulars, after the issues have been referred to á referee to hear and determine, it will not be exercised to interrupt the progress of the trial actually proceeding before spell referee,
g. There can be no necessity for a formal written bill of items, where the plaintiff has been partly examined as a witness, although she has not already upon her direct examination disclosed the nature of her claim, since she can be compelled to do so, upon her cross-examination,
(Before Moncrief, J. at special term,
October, 1884.)

This is an application by the defendants for • a bill of particulars of the plaintiff’s demand.

It appears that the action was commenced in July, 1863 ; that issue was joined in August,-1863 ; that the action was referred to Hon. W. F. Allen to hear and determine in November, 1863 ; that the plaintiff has given testimony on her own behalf upon several occasions, and the further trial of the cause stands over for the cross-examination of said plaintiff by the defendants,

The order to show cause why a bill' of particulars should

p. 707
not be furnished, and in the meantime staying all proceedings, would not have been granted had thesé facts been presented to the judge who granted the order; there can be no necessity for a formal written bill of items when the plaintiff, if she has not already upon the direct, can, upon her cross-examination be compelled to disclose the nature of her claim with the nicest particularity.

It was held in Andrews v. Cleveland, ( 3 Wend. 437 ,) that “ when a bill of particulars is applied for by a defendant after issue joined, it is a suspicious circumstance and the officer granting the order should be well satisfied that the object of the party is not delay ; and he should require a good excuse for the late application.

Assuming the court to have the power to order a bill of particulars after the issues have been referred to a referee to hear and determine, I am quite clear that it will" not be exercised to interrupt a trial actually proceeding before him.

The motion must be denied, with $10 costs. The order staying proceedings is vacated.

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