p. 157Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.Decided December 12, 1887.Appeal from an order requiring plaintiff to make his reply more definite and certain, by specifying the particulars in which he claims defendants’ title to be defective; and to furnish defendants with a bill of particulars setting forth the specific defects claimed in the complaint to exist in defendants’ title.
The action was to procure the repayment to the plaint • iff of the ten per cent, deposited by him with the auctioneers, on a stile by auction of certain real estate, and to recover the expenses of examining the title, on the ground that the vendors could not give a good title. The answer, among other things, alleged a cause of action against the plaintiff for a forfeiture of the ten per cent., alleging that the vendors have a good title. The reply to this cause of action repeated substantially the allegations of the complaint.
James F. Malcolm, attorney, and S. Jones, of counsel for appellant:
I. Defendants allege in the answer that they have a good title. It would be more appropriate to us to ask to be informed as to what the facts are constituting that good title. We allege that, so far as we know, their whole title is derived from the will and court proceedings set forth in both the complaint and reply, with great particularity. If there is any other source of title they know it, not we. We then, rather than they, should be seekers after information.II. The allegations in the reply are absolutely definite and certain. They allege that the only right and title of the defendants are such as are derived from a will and certain court proceedings, particularized and set forth, and that nothing therein contained gave the defendants any power or authority to convey in fee simple. Nothing can be more clear or definite than that we base
p. 158-our objections to the title on the insufficiency of that will and the said court proceedings to vest in defendants a right to convey in fee simple.III. Defendants want us to furnish them with the points of law (not the argument) upon which we rely to establish such inefficacy. This is not the office of a bill ■of particulars. Higganbottom v. Green, 25 Run, 214, 216. Nor is it the office of a pleading. The defendants have the same means of knowledge and information as to defects in the said will and court proceedings, as the plaintiff. Indeed they ought to have better, for they claim under them. There is no difficulty in putting on the defendants the burthen of establishing ■defects. Indeed they have done so by their answer to the complaint. For this reason, if no other, the motion should be denied. Reardon v. New York, &c., Card Co., 50 Super. Ct.. 514. The defects, if any, depend on the validity of certain legal propositions arising' from the matters appearing on the face of the will, the court proceedings, and on the other facts specifically and particularly set forth in the reply. A respondent might as well, before argument, ask the appellant to furnish him with the points on which he relies to reverse a judgment, .as the defendants ask for the order applied for.Platt & Bowers, attorneys, and John M. Bowers, of counsel for respondents :
I. The motion to make the reply more definite and certain was properly granted. § 546, Code Civ. Proc. The scope of this section is much broader than that of § 160 of the Code of Procedure. The latter was limited to cases where the “ nature ” of the action was uncertain and the cases under that Code limit the application of that section to such cases. The present section in terms ■applies to cases like the one at bar. Notes to Throop’s Code.II. The defendants are entitled to the bill of particulars, as ordered. The power of the court to order a bill
p. 159«of particulars extends to all descriptions of actions. Dwight v. Germania Life Ins. Co., 84 N. Y. 493 ; Tilton v. Beecher, 59 Ib. 184. The case of Doe v. Philips, 6 T. R. 596, in some of its features is like the case at bar. The title to real estate was involved. It was an action • of ejectment, and it was made to appear to the court that the action was founded upon the alleged forfeiture of the term of a lease by a breach of covenants contained in it. The court ordered the plaintiff to furnish particulars qf the covenants, of the breaches, of the times when, . &c., he meant to insist that the plaintiff had forfeited his lease. See also Peters v. Link, 2 Abb., N. C., 419 .Section 531 of the Code provides that the court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party. Tilton v. Beecher, 59 N. Y. 187 , states the rule ■ to be, “ that in almost every kind of case in which the ■ defendant can satisfy the court that it is necessary to a fair trial that he should be apprised beforehand of the particulars of the charge that he is expected to meet, the court has authority to compel the adverse party to specify those particulars, so far as in his power.”
To entitle plaintiff to recover in this action, he must prove that the defendants have failed to convey or offered to convey a good title to the property which the plaintiff agreed to purchase. Baylass v. Stimson, 53 Super. Ct. 233.
The charge that defendants will be called to meet, is that the title that they offered to convey was not a good title to the premises, and we are satisfied that it is necessary to a fair trial of the action that defendants should ■be apprised beforehand of the specific defects in the title. Without such knowledge defendants may be surprised on the trial, by the presentation of 'a defect which it is possible may be met or removed. If there is no substantial defect, plaintiff cannot be injured by being «compelled to.specify such defect.
p. 160The order appealed from, however, in addition to-requiring a bill of particulars, requires that the plaintiff make his reply more definite and certain, or specify some particulars that he is required to furnish by the bill of particulars ordered. Both of these remedies are not required, and we think from the nature of the action, that the more appropriate method is to require the plaintiff to furnish the bill of particulars.
The order appealed from should be modified by striking out the provision for the service of an amended reply, and as so modified, affirmed without costs of this appeal to either party.