16 N.Y.S. 517 | New York Court of Common Pleas | 1891
We agree with the learned judge at special term that the authority of the court tc require one party to an action to furnish to the other a bill of the particulars of his claim extends to actions of ejectment, and that by means of such a bill the party may be directed to apprize the other of the particular land of which possession is sought to be recovered, and whether his alleged right to recover possession is derived through grant, devise, descent, adverse possession, or estoppel. The order appealed from, however, goes further. It requires plaintiff to furnish defendants with a bill of particulars of his claim, “and of the facts upon which said claim is based,” and as to the language in quotations it is objectionable. The language referred to is susceptible of no other interpretation than that the plaintiff is thereby directed to supply defendants with a detailed statement of the means by which he will substantiate his claim of right to possession at the trial. Such a requirement calls for the disclosure of the evidence, and transcends the office of a bill of particulars. Plaintiff is entitled to prove his right to recover possession by whatever lawful means may be at his command at the time of trial, and if that right be curtailed by requiring him to furnish the defendants with a statement of the means of his proof, to the preclusion of evidence thereafter discovered, or of means the value as evidence of which was not known to him at the time of compliance with the order, it is apparent that the hardship resulting to him would be as great, if not greater, than that which could be occasioned to the defendants by surprise at the trial, when the indulgence of the court by postponement might yet afford at least partial alleviation. The order appealed from should be modified by striking therefrom the words, “and of the facts upon which said claim is based,” and as so modified the order is affirmed, without costs. All concur.
