Hamilton v. American Vote Registering Machine Co.

49 N.Y.S. 595 | N.Y. App. Div. | 1897

Per Curiam :

It is the province of the complaint to inform the defendant of the specific acts constituting the alleged wrong, and to enable the defendant to know what the plaintiff’s charge against him is. And, although a complaint relates to acts of a defendant which must be presumed to have been within his knowledge, yet if the specific acts constituting the wrong complained of are not stated by the pleader, then further particulars are necessary in order that the defendant may be definitely advised of the charge made against him.

Where the defendant would otherwise be left in ignorance of the specific charge made or attempted to be made in the pleading, then the court will require, by order, that the complaint be made more definite and certain, or a bill of particulars be furnished of plaintiff’s charge, in order that the defendant may prepare to meet it on the trial. This is a familiar rule, and the cases cited by respondent’s counsel are only declaratory of this rule, and dp not extend it.

In the case at bar we think the rule of pleading, in the respect alluded to, has been complied with, and that the allegation which defendant complains of meets the requirements of the rule of pleading governing such cases. The allegation is that when the defendant the United States Voting Machine Company purchased of the American Vote Registering Machine Company the invention relating- to voting machines, and the letters patent which might be issued thereon, it had knowledge of the plaintiff’s contract with the American Vote Registering Machine Company for the sale and purchase thereof. There is no indefiniteness or uncertainty in the charge thus made. The specific proposition is fully and fairly stated, and the defendant is notified of the claim of plaintiff. The latter has made this allegation in a complaint verified by him. There is no authority given to the courts, either by statute or by decisions, to compel the plaintiff, in a case like the one at bar, to set forth in a bill of particulars the sources or character of the information from which he derived his knowledge of the fact alleged in his complaint.

The language employed in the opinion of the court in Newell v. Butler (38 Hun, 104) is applicable to the question under consideration.

“ The result of the numerous reported adjudications relating to the scope and nature of a bill of particulars is, that its only proper office is to give information of the specific proposition for which the pleader contends in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition. Where the original pleading itself states the jirojiositions or facts relied lipón so specifically and particularly as that, to require the party pleading to give further information in reference thereto would be to force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for.”

So here the plaintiff, in order to fulfill the requirements of that portion of the order appealed from, would necessarily be compelled to disclose the evidence by which he must substantiate the allegation of his complaint, which clearly and definitely states the specific proposition or claim .which he makes against the defendant. This he should not be compelled to do.

So much of the order as' is appealed from is reversed, with ten dollars costs and disbursements.

All concurred.

So much ' of the order as is appealed from reversed, with ten dollars costs and disbursements.

DETERMINED IN THE THIRD DEPARTMENT IN THE APPELLATE DIVISION, gammas 1898,