27 N.Y.S. 1022 | N.Y. Sup. Ct. | 1894
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.” Although the language of this section is clear and unambiguous, we feel called upon, from time to time, to repeat it, because counsel, in support of one view or the other, insist on arguing that there is a class of cases wherein a bill of particulars will be, and a class of cases in which one will not be, ordered. In a late case, where we had occasion to examine this question, of Faxon v. Ball, (Sup.) 21 N. Y. Supp. 737, it was said:
“There is, as shown by tile very wording of the section of the Code quoted, no inflexible or invariable rule applicable to motions for bills of particulars; there being certain general principles which may be proper to be referred to in determining under what circumstances the power vested in the courts will be exercised in a given case in ordering a bill of particulars.”
And where, in that case, it appeared that all the facts and circumstances with respect to the act of the assignor were peculiarly within reach of the assignee, and that the particulars were asked for simply for the purpose of limiting the evidence upon which the plaintiff might rely to sustain her charges, it was held that the motion was properly denied. See, also, Passavant v. Cantor, (Sup.) 1 N. Y. Supp. 574. The facts here appearing, upon which a bill of particulars was sought, are not nearly so strong as in the case of Faxon v. Ball, supra. There it was asserted that the evidence was needed to be used upon the trial and to prevent surprise. Here the only purpose for which the particulars are required, as shown from the quotation given from the affidavit, is to enable the defendants to answer. This distinction between the office of a bill of particulars in order to enable a defendant to answer and one required for use upon a trial must not be lost sight of, because it might very well be that, while particulars would be required to be furnished to prevent surprise upon the trial, an application made in the same case to obtain the same particulars for the purpose of answering might be denied, where it appeared that without such particulars an answer could be interposed. To summarize, the particulars demanded have reference to those allegations of the complaint which, in addition to alleging the insufficiency in form, and the invalidity on the face, of the assignment, charge certain acts of fraud in secreting the property, in omitting from the schedules a portion of the assets, and that the assignment was made to hinder, delay, and defraud creditors. In other words, reducing these latter, it may be said that the complaint seeks to set aside the assignment upon two general grounds: First, that it is void upon its face; and, second,