Cluff v. Thompson — 54 N.Y. Super. Ct. 398

Majority

p. 398

MARY CLUFF, Respondent, v. JOHN THOMPSON, Impleaded, et al., Appellant.

Headnote

Practice—Order for bill of particulars.

The Special Term made an order requiring defendant, sued as surety on an executor’s bond, to furnish plaintiff a bill of particulars of the facts,

p. 399

by reason of which defendant’s principal (as defendant alleged, in his answer) ceased to act as executor, and entered upon his duties as trustee in respect to property referred to.in the complaint.

Held, that this order was within the judicial discretion of the court, and the discretion was properly exercised.

Before Sedgwick, Ch. J., and O’Gorman, J.

Decided May 2, 1887.

Appeal from an order made at Special Term requiring defendant Thompson, sued as surety on an executor’s bond, to furnish a bill of particulars of the facts, by reason of which his principal ceased to act as executor and entered on his duties as trustee in respect to property referred to in the complaint, and stating the act or acts by which plaintiff is alleged to have assenteto said principal’s acting as trustee.

Isaac Fromme, for appellant.

Robert Owen, attorney, and Edward B. Whitney, of counsel for respondent.

The granting of this . order was in the judicial discretion of the court, and we see no reason to think that that discretion was not rightly exercised.

The defendant relied on the claim that his principal’s status had been changed, and that he had ceased to act as executor and had assumed the office, of trustee, and had acted as such for thirteen years with the consent of the plaintiff.

It is not right that the plaintiff should be left in the dark as to a fact so important to her rights, and if there were acts of the plaintiff or of any one else which caused •or contributed to such a result as defendant asserts, it is right that she should be apprised of them before going to trial.

The order appealed from is affirmed, with $10 costs.

Sedgwick, Ch. J., concurred.