Knickerbocker Trust Co. v. Packard

96 N.Y.S. 412 | N.Y. App. Div. | 1905

Spring, J.:

■ The action is brought; to recover- $8,263 and the complaint contains two distinct causes of action. One is. a guaranty of an underwriting agreement entered into between the defendant and a corporation known as the Consolidated Industries Company for the purpose of securing a loan from the plaintiff .to said company and duly assigned to the plaintiff, and the other on ten certificates or notes alleged to have been executed by the defendant .concurrently with the execution of the underwriting agreement and. delivered to said company by which they were negotiated with the plaintiff before their maturity and for value.

The defendant in his answer alleges in brief that said agreement and certificates- were executed upon the. explicit agreement with one Garhart that-théy were not to be effective or operative unless and until sufficient subscribers 'were obtained to- a so-called syndicate, agreement to take the whole issue of $200,00.0 of bonds of the Consolidated Gas and Electric Company of Batavia,, N. Y.; that sufficient subscribers were not obtained tb such agreement; that in violation of such agreement with Garhart, said underwriting agreement was assigned and said certificates were delivered to said industries company and by it to the plaintiff. The answer further avers-’ upon information and belief that the plaintiff as well as said industries 'company “had knowledge and notice” of the agreement and circumstances-pursuant to which said guaranty and certificates were executed by the defendant. - - ’

The plaintiff by this application endeavored -to require the defendant to state whether the agreement with Garhart was oral or written and also “ the name or names of the officers, agents Or employees of the plaintiff- to whom the knowledge, information or notice was given which is. averred in the- amended answer of the defendant to have been given the plaintiff, and further setting forth the time when, the place where, and the person in plaintiff’s service to or through whom notice was given plaintiff of the' alleged agreement” and the name of each who gave.the notice. We think the plaintiff is entitled to the substance of the information sought by it.

The plaintiff is an extensive banking corporation with a board of thirty-two directors and a large number of officers and employees actively participating in the actual management of its business affairs. Its assistant trust officer in his affidavit states that he had charge of all the negotiations connected with the loan secured by the obligations of the defendant and liad no information of the alleged agreement between the defendant and said Garhart. This officer also swore that he made diligent inquiries of the officers and-agents of the plaintiff and each denies that he possessed such ,information. The venue of the action is in the county of Erie and in order to guard against surprise the plaintiff may be compelled to transport from ISTew York a considerable number of its managing . officers to be present at the trial and still not be prepared to repel the proof of the defendant. The defendant has alleged upon information and belief that plaintiff had “ knowledge and notice' ” of the facts contained in the answer to the effect that the defendant was victimized and defrauded by Garhart. If he has information upon that important aspect of the case he ought to disclose it. The plaintiff ought not to be left in the dark on what is likely to be the turning point in the case.

Cases should be tried on their merits. Surprise so far as possible should be avoided. The unexpected production of important, testimony is not ordinarily desirable. The bill of particulars is an enlargement of the pleading to advise the party with reasonable precision of the character of the claim or charge against him so that he may be enabled to direct Ms preparation for the trial, to the distinct issue. (Taylor v. Security Mutual Life Ins, Go., 73 App, . Div. 319.) The fact that the name of the person must necessarily be disclosed in revealing the information is no real objection to the granting of the motion. (Boyle v. Goodwin, 98 App. Div. 95 ; Riker v. Erlanger, 87. id. 137; Alleghany Iron Co. v. Chesapeake & O. R. Co., 69 id. 87; Dietz v. Leber, 33 id. 563.)

The person or persons, connected with the plaintiff who possess the information claimed are not necessarily witnesses for the defendant. The knowledge possessed was acquired from some source and whoever imparted it may testify on behalf of the defendant. We also think that it is ^entirely reasonable that the defendant should disclose whether the agreement with Garhart, and upon which the defendant relies, was oral or written. (Treadwell v. Greene, No. 1, 87 App. Div. 289.) If in writing the rights of the contracting parties will be determined by it doing away with the necessity of verbal proof over its terms.

The order should bp reversed, with ten dollars costs and disbursements of this appeal, ánd the motion granted, with ten dollars costs,

All concurred.

Order reversed, with ten dollars costs and disbursements of this appeal, and motion granted, with'ten dollars costs, by requiring the defendant to state whether the agreement between the defendant and Garhart was oral or written, and also by stating the name of names of the officers or agents of the plaintiff who possessed the knowledge or notice with which they are charged in the amended answer. The form of the order to be settled by and before Mr. Justice Spring- on two days’ notice.