14 N.Y. 176 | NY | 1874
Lead Opinion
The only question arising upon the present appeal, which is re viewable in this court, is whether or not the court below had power to grant the application of the defendant. If it possessed that power, and under the mistaken impression that the power did not exist, denied the application on that ground, we have jurisdiction and it is our duty to correct that error of law, and remit the case to the court below, with a direction that the motion be heard, at Special Term upon the merits. (People v. N. Y. Central R. R. Co., 29 N. Y., 418; Brown v. Brown.
It is not contended on the part of the appellant, and it would have been useless to contend, that the present application was founded upon legal right, or that it did not rest in the discretion of the court, nor that if the order appealed from was the result of a fair exercise of that discretion we should be asked to review it. The ground of the appeal is that the judge to whom the application was originally made at Special Term decided that he had no power to grant the relief sought, and that he erroneously held that such relief could have been granted and should have been applied for under section 160 of the Code of Procedure, and could be obtained by no other proceeding, and that the defendant is entitled to have this error of law corrected and his application duly considered without being embarrassed by the legal difficulties supposed to stand in its way.
The first point for our consideration is, whether in fact the case was disposed of in the court below on the question of power. If it was, we are then called upon to decide whether or not the power existed, and if we find that it did, the • defendant is entitled to the unembarrassed exercise of the discretion of the court in which his cause is pending, upon' the question whether or not justice demands that his application be granted.
The best evidence on the first point is the order of the court denying the defendant’s motion. This order recites, among other things, that an order had been granted requiring the plaintiff to show cause why he should not deliver to the defendant’s attorneys “ a statement in writing of the particular times and places at which ■ he expects or intends to prove that any acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff.” It denies the motion “ on the ground that the court had no power to grant the same, and on the other grounds stated.”
We must suppose that the learned judge referred to the grounds stated by himself in the opinion which he delivered cotemporaneously with the order, and in which he set forth the reasons for his decision. Any other supposition would be unreasonable.
This opinion presents with much force the reasons for holding that he had no power to grant the motion. But in no part of it does-he say that he has exercised his discretion as to the merits of the application and determined that it should be denied upon the merits.
The learned judge after commenting on the subject of bills of particulars in actions of tort, and showing that ordinarily they will not be granted in that class of actions, says: “ But, as I have said, the question is as to the power of the court,” and he proceeds to sustain his position that the court has no such power by arguing that the defendant could have obtained an adequate remedy by a motion under section 160 of the Code to make the complaint more definite and certain, and that that was the appropriate and sole remedy.
After a careful examination of the opinion we are satisfied that it does not in any substantial respect qualify the statement in the order, that the motion was denied on the ground of want of power, and that the other grounds stated ” are that a different remedy is provided by the Code and the party is confined to the one thus provided.
This being the shape in which the case comes before us we think that it presents a question of law and is therefore appealable to this court.
It may not be absolutely essential to consider the question, whether the particulars sought could have been obtained under section 160, by an application to make the complaint more definite and certain. If the power to order particulars
The language of the section is: “ When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain.”
It will be observed that it is only where the precise nature of the charge is not apparent that an application can be made under this section. It enables a party to obtain a definite statement in the pleading of the natwre of the charge intended to be made against him, but not of the particulars or circumstances of time and place. For this purpose a different proceeding is pointed out, viz., an application under section 158, which provides among other things that “ the court may in all cases order a bill of particulars of the claim of either party to be furnished.”
It is evident that in the present case there was no occasion for an application under section 160 to make the complaint more definite and certain. There is no uncertainty or indefiniteness in respect to the nature of the charge made against the defendant. The difficulty under which he claims to be laboring is' that the complaint does not point out the times or occasions when the alleged offences are claimed to have
been committed, but avers simply that they were committed “ on the 10th of October, 1868, and on divers other days and times after that day and before the commencement of this action,” thus covering a period of very nearly six years, the action having been commenced in August, 1874. He denies that the acts charged were ever committed, but claims that for the purpose of preparing his defence it is necessary that he should be furnished with the particulars of time and place,
In actions upon money demands consisting of various items, a bill of particulars of the dates and description of the transactions out of which the indebtedness is claimed to have arisen, is granted almost as a matter of course, and this proceeding is so common and familiar, that when a bill of particulars is spoken of, it is ordinarily understood as referring to particulars of that character. But it is an error to suppose that bills of particulars are confined to actions involving an account, or to actions for the recovery of money demands arising upon contract. A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of pleading. They have been ordered in actions of libel; escape (Davies v. Chapman, 6 Ad. & El., 767; 7 D. & R., 774); trespass (Johnson v. Birley, 5 B. & A., 540); trover (Humphrey v. Cottleyou, 4 Cow., 54), and in ejectment (Vischer v. Conant, 4 Cow., 396). Even in criminal cases the instances in which the courts have, by analogy to the practice in civil actions, ordered bills of particulars, are frequent, viz.: On an indictment for being a common barrator, where a general form of pleading-is allowed. (Hawkins’ P. C., B. 1, chap. 83, § 13 ; Goddard v. Smith, 6 Mod., 261; Commonwealth v. Davis, 11 Pick., 432.) On an indictment for nuisance the prosecutor has been required to specify particulars of the separate acts of nuisance which he intended to prove (Rex v. Curwood, 3 Ad. & El., 815; Regina v. Flower, 3 Jur., 558), and in a prosecution for embezzlement (Rex v. Hodgson, 3 Carr & P., 422; Rex v. Bootyman, 5 id., 300); and in England there is nothing more common at the present day than to order particulars to be filed in an action for divorce, either on the ground of cruelty or adultery; and this is done.on the appli
In this State Chancellor Walworth, in the case of Wood v. Wood (2 Paige, 108), laid down the rules which' have since governed in actions between husband and wife for divorce, and rendered applications for bills of particulars unnecessary. It must be remembered that here, when the charge of adultery is denied, the issue must be tried by jury unless the parties consent to a different mode of trial, and it is even doubtful whether they should be permitted so to consent. But in a contested case the chancellor laid down the rule as follows: “ The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues in such a manner
The chancellor here speaks of setting forth the particulars in the answer, because the case then before him was one of recrimination.
In the case of The Commonwealth v. Snelling (15 Pick., 321), Ch. J. Shaw gave a very thorough examination to the subject of the practice of the courts' of common law in requiring bills of particulars, and the principle upon which it is founded, and after an extensive review of the authorities, came to the conclusion that the general rule to be extracted from them was, that where, in the course of a suit, from any cause a party was placed in such a situation that justice could not be done at the trial without the aid of tlie information to be obtained by means of a specification or bill of particulars, the court, in virtue of its general authority to regulate the conduct of trials, had power to direct such information to be seasonably furnished. The authorities, cited by him are decisions in civil cases, but by analogy he applied the principle to a criminal prosecution for libel, and sustained an order requiring the prisoner to furnish particulars of his justification of a general libellous charge against a magistrate.
The same rule is laid down in a recent case in the Court of Queen’s Bench, in Ireland (Early v. Smith, 12 Irish Com. L., appendix 35), where it was held, and on the authority of many of the same decisions which are cited by Oh. J. Shaw, that the rule which governs the courts in ordering particulars to be given is, “ that in all cases, whether in trespass;
In the case last cited a bill of particulars was ordered in a case of oral slander. Although no precedent could be found for an order for particulars in such a case, the court determined that the circumstances presented to them brought the case, by analogy, within the reasons of those in which particulars had been ordered, and that therefore they were authorized to afford the relief required.
A reference to a few of the authorities upon which these decisions were founded will show that in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised beforehand of the particulars of the charge which he is expected to meet, the court has authority to compel the adverse party to specify those particulars so far as in his power. For instance, in Doe v. Philips (6 T. R., 597) an action of ejectment was brought. It was made to appear to the court that the action was founded upon the alleged forfeiture of the term of a lease by the breach of covenants contained in the lease. The court ordered the plaintiff to furnish particulars of the covenants, of the breaches, of the times when, etc., he meant to insist that the defendant had forfeited the lease. To the same effect was the case of Doe v. Broad (2 Man. & Gr., 523). So in Davies v. Chapman (6 Ad. & El., 767), it was held, that in an action for an escape the plaintiff might properly be ordered by a judge to give a particular of the alleged escape, specifying the time and place, and that the plaintiff was
Without following the line of English decisions, I come at once to those of our own country. In Pennsylvania, as early as 1784, in the case of Steele v. Steele (1 Dall., 409), after issue joined in an action for a divorce for cruelty, the court held that notice ought to be given of the facts intended to be proyen under the general allegations of the libel. In 1805, in Garrat v. Garrat (4 Yeates, 244), the libel .charged that
Most of the authorities which I have mentioned consist of adjudications prior to the amendment of 1849 to section 158 of the Code of Procedure, which is in these words: “ And the court may, in all cases, order a bill of particulars of the claim of either party to be furnished.”
It must be borne in mind that we are now discussing simply a question of-power, whether, in the case before us, the court below had power to order particulars to be furnished; not whether, upon the facts disclosed by the affidavits, the court below ought or ought not to have ordered particulars, but whether it had thq power so to do. If it made a mistake in that respect we must correct it.
If the Code had been silent upon the subject of bills of particulars, the four hundred and sixty-ninth section would probably have sufficed to preserve the authority of the court to order particulars in all cases before accustomed. But the express authority conferred by section 158 to order particulars in all cases, especially when read in view of the cases which have been cited, and in which particulars had been ordered, would seem to place the question beyond doubt.
Many of the arguments on the part of the plaintiff are more proper to be addressed to the court of original jurisdiction, on the question of the exercise of its discretion, than to this tribunal. It is claimed that an important element in the plaintiff’s case consists of confessions made by the defendant, and that, if particulars are ordered, it will be necessary to prove that he confessed the acts to have been committed at
A point is made, on the part of the plaintiff, which requires notice. It is contended that the General Term, in affirming the order of the Special Term, must be presumed to have passed upon the merits on the facts, as well as upon the law of the case, and the decision in Tracy v. Altmyer (46 N. Y., 598), is cited in support of this point. The answer is, that in the present case it appears that the order of the Special Term was reviewed by only two judges of the court. That they were divided in opinion, and that it was only by force of the statute specially applicable to the City Court of Brooklyn (Laws of 1870, p. 1047, § 6), that the order stood as affirmed, the two judges disagreeing.
Our conclusion is, that the orders of the Special and General Terms of the City Court of Brooklyn be reversed, without costs, and the case remitted, to be heard at Special Term, that its discretion may be exercised upon the merits.
Dissenting Opinion
(dissenting). If the court below had not the power to grant the motion the order shoidd be affirmed. If the power existed its exercise was in the discretion of the City Court of Brooklyn ; and the action of that court, in the exercise of that discretion, is not the subject of review in this court. In one or more cases in which we have thought the court of original jurisdiction had erred in refusing to act, by reason of a supposed want of power, we have reversed the orders and remitted the proceedings, to the end that the proper court might exercise the discretion the law had vested in it. In those cases it appeared by the order and record of the court that the decision of the court below was placed exclusively on the ground of a want of power. Here we have not the record evidence. The motion at Special Term was denied “for want of power and for other reasons stated,” showing conclusively that the relief was not denied solely upon the ground that the court had no power to grant it. The clear inference from the terms of the order is, that the
If the fact he that it was affirmed under the statute by a divided court (which is not stated in the order) the result would be the same. The facts giving this court jurisdiction of the appeal must appear by the record. They do not so appear in the case.
I am for the dismissal of the appeal.
All concur with Rapallo, J., except Allen, J., who was for dismissal of the appeal; and Grover, J., who doubted the existence of the power, but concurred with Allen, J.
Ordered accordingly.
