Stevens v. Webb

12 Daly 88 | New York Court of Common Pleas | 1883

Charles P. Daly, Chief Justice.

There is no doubt as to the power of the judge at Special Term to make such an order as the one appealed from (Dwight v. Germania Life Ins. Co., 84 N. Y. 493; Orvis v. Dana, 1 Abb. N. C. 268; Tilton v. Beecher, 59 N. Y. 176). In fact it has been specifically held in actions of ejectment, that a bill of particulars of the claim of the plaintiff or of the defendant, in respect to the land, may be ordered (Doe. d. Webb v. Hull, and Doe d. Saunders v. Duke of Newcastle, 7 T. R. 332 note A).

The only question, therefore, on the appeal, is whether, upon the facts disclosed by the affidavits, the order should have been granted.

The object of a bill of particulars, whether required of the plaintiff or of the defendant, is that the other party shall not be taken by surprise from the general^ of the pleadings and come to the trial unprepared as to the nature of the claim made by the plaintiff or the nature of the defense set up to it; and the effect of the bill, therefore, is to restrict the proof and limit the recovery or defense to what is stated in it, unless the variance between it and the proof offered could not have misled the other party (Nair v. Gilbert, 3 Wend. 346; Brown v. Williams, 7 Cowen 316; Bowman v. Earl, 3 Duer 691; Hurst v. Watkins, 1 Camp. 69; Graham’s Practice, 514, 518).

But if a party fully knows what .his adversary means to rely on for his cause of action or defense, he is not entitled to a bill of particulars of it ( Willis v. Wiley, 19 Johns. 268; Wigand v. De Jonge, 18 Hun 405); and this was the case here. The affidavit upon which the order to show cause was granted was made by the plaintiffs’ attorney, in which he stated that in a former litigation, in which a similar defense was interposed in respect to the property in the vicinity of that of the one involved in this suit, proof was offered by the counsel for the defendant in the present suit, of the existence of four distinct existing boundary lines of the plaintiffs’ land; that it was then contended that they had all been practically located; that three of the plaintiffs’ predecessors, at intervals of many years, had located and adjusted them; and that the present counsel for the plaintiffs in this action was fully informed of the matters of defense for which he now applies for the particulars, appears more fully in the affidavits read in opposition to the motion, in which it is stated that in three previous trials the questions and facts presented by the defense in this action had been the subject of direct investigation; that the plaintiffs’ attorney was counsel in these actions, and that it is the belief of the defendant’s counsel, that there is not and cannot be any evidence introduced in the trial of the present action other than that embraced in the former actions, and of which he believes the plaintiffs’ counsel is as fully informed as any living person.

The plaintiffs’ attorney, upon this appeal, calls our attention to the fact that this does not charge that the plaintiffs know anything, but refers only to the knowledge possessed by the plaintiffs’ attorney, a distinction which, upon a motion of this nature, made by the plaintiffs’ attorne}’-, and upon his affidavit, we do not appreciate.

The object of the motion is not to obtain information in respect to what lines the defendant refers to in the sixth paragraph of his answer, as having been practically located and adjusted, as the boundary lines between the lands of the plaintiffs’ ancestors or predecessors, and the lands of the corporation of the city of New York, but, as expressed in the moving affidavit, to confine the defendant upon the trial to some one or the other of these four lines, and compel him to declare by whom he will claim on the trial that such a line was located.

I see no reason why the defendant should be compelled— as expressed in the order to show cause—“to state what lines and upon what position upon the soil they are, or by what ancestor or predecessor he expects to prove that such lines were so located or adjusted, and at what time he claims or expects to prove that they were so located and adjusted.” The plaintiff is fully apprised, through the knowledge which he already has, of the exact nature of the defense which the defendant means to set up to this action, it being the same as set up by him in former actions, and I see no reason why he should be limited to any one of the particular lines assumed by him to have been adjusted and located.

The reason why the party is restricted in his proof by being limited in his recovery or defense to what is stated in the bill of particulars, is because he has the right to assume that his adversary has set out fully what he means to rely on for his cause of action or defense, and he should not be allowed to mislead or deceive the other party by setting up one thing and proving another—by giving a particular account of the nature of his claim or defense and then proving something different. Although the complaint or answer contains all that is required in a pleading, it may be deficient in the necessary information for the other party’s guidance, which information he is not presumed to know; but if he does know it, why should the other party be required to furnish him with particulars of which he is already fully apprised. While full information should be furnished of the nature of the cause of action or of the nature of the defense that is set up to it, the court must not, in the case of a defendant, overlook what has been frequently reiterated on applications of this kind for bills of particulars —that he is not bound to disclose the evidence upon which he relies to establish his defense; that it is sufficient if it clearly appears what the nature of his defense is; and if upon the statement made of it, his adversary and the court can see, upon the trial, what evidence is or is not relevant to prove it, it is enough. As was said in the case of Higenbotam v. Green (25 Hun 216), a bill of particulars “is neither given nor required for the purpose of disclosing to an adverse party the case relied upon, nor the proof to substantiate the same. Its entire scope and nature is to furnish information to an opponent and to the court, of the specific proposition for which the party contends.”

The defense set up by the sixth paragraph of the answer is that more than forty years before the commencement of this suit the boundary or division lines between the plaintiff’s ancestors and the corporation of the city of New York were, by all the parties in interest, practically located and adjusted so as to exclude from the lands of the plaintiffs’ ancestors and to include within the lands of the said corporation, the premises which are described by metes and bounds in the twelfth paragraph of the complaint, and are premises which the defendant holds under claim of title from the said corporation, and to recover which from the defendant the plaintiffs have brought this action of ejectment. How the boundary or division lines were so located as to exclude the lands of the plaintiffs’ ancestors and include in the lands of the corporation of the city of New York the premises which the defendant and his grantor have had possession of for more than forty years under a claim of a title, is matter of evidence, and the defendant is not required to declare to his adversary the evidence by which he expects to prove the fact upon which he relies as his defense; in addition to which the plaintiffs’ attorney knows fully what that evidence is; and the reason which he gives in his affidavit why the defendant should be restricted, through the instrumentality of a bill of particulars, to some one or other of the four lines of which the defendant gave proof in the preceding actions, is that if the defendant is not so confined, it will require an extensive preparation on the part of the plaintiffs of a large amount of irrelevant testimony.

The inconvenience or trouble to which the plaintiff may be put in proving his case, is no reason why the defendant should be limited in his defense to proof of the locating or adjusting of one line. For all that the court can know, it may be very material, upon a question of boundaries,, for the defendant, in establishing his defense, to show the location of four lines. The respondent suggests that the order does not limit the defendant to the proof of one line, or impose any limitation; that it is simply in general terms that a bill of particulars be furnished of the matters averred in the sixth paragraph.

Where an order made upon a motion of this kind is simply, in general terms, that a bill of particulars be furnished, it 'would naturally be interpreted in connection with what was asked for in the order to show cause; and the party furnishing it would be expected to set forth the specific information that has been applied for ; and the defendant upon complying with the order would be restricted to the particulars set forth by him in the bill. But if such is not its effect, if it would not, as the plaintiff expected and desired, limit the defendant to one or other of the four lines, then there was no object in granting it, as the plaintiff is already possessed of all the information that would be contained in it.

For these reasons the order, in my opinion, should be reversed, with costs to abide filial event.

Van Brunt and J. F. Daly, JJ., concurred.

Order reversed, with costs to abide final event.