| N.Y. App. Div. | May 15, 1899

Rumsey, J.:

In the month of May, 1890, Charles Lewis and Sophie Werner were appointed general guardians of the two plaintiffs in this action, and entered upon the duties of their trust. In the year 1898 Charles Lewis, who had in his hands about $2,500 belonging to the plaintiffs, *487purchased with that money a leasehold interest in premises situated in the city of New York; but, although the property was bought with the money of the plaintiffs, Lewis, instead of taking a deed to the plaintiffs, or to himself and Werner as general guardians,, caused the deed of conveyance of the premises to be made directly to himself personally, without the. knowledge of any of the other interested parties.

He put the deed upon record, and thereafter the title to the property was apparently in himself individually. The firm of which Lewis was a member was indebted to the Franklin National Bank, and for the purpose of securing that indebtedness they delivered to that bank a mortgage upon several parcels of land in the city of New York, one of which was the premises in question. Lewis has died. The Franklin National Bank has begun an action to foreclose the mortgage given to it by the firm of which Lewis was a member. This action is brought to procure a judgment declaring that Lewis took the property bought with the plaintiffs’ money, as trustee for them, and to require that it shall be conveyed to them, and asking further that the mortgage given to the Franklin National Bank be adjudged not to be a lien upon said property.

The allegation of the complaint in respect of which the bill of particulars was ordered, is that about the 5th day of September, 1895, Charles Lewis, acting as one of the general guardians of the plaintiffs, and ostensibly in the discharge of his duties as such general guardian, had invested the sum of $2,500, moneys and property, of the plaintiffs, collected, received and held by him as such general guardian as aforesaid, in a purchase at referee’s-sale in foreclosure of a certain leasehold, etc. The bill of particulars requires the plaintiffs to state¿ first, the dates upon which Sophie Werner and Charles Lewis took charge of certain personal property of the plaintiffs, and moneys due and owing to the plaintiffs; what said moneys consisted of; the amount of said moneys ; the names of the parties from whom the said property and moneys were received, and how and at what times the said Sophie Werner and Charles Lewis invested and reinvested such moneys as alleged in paragraph 1 of the complaint.

How these facts can be of the slightest materiality in the trial of this action we are unable to see. It is true that the complaint *488alleges that the general guardians took charge of the personal estate. of the plaintiffs and proceeded to invest and reinvest it, and otherwise to discharge the duties imposed upon them by their guardianship. , It is also true that it is alleged that the $2,500 which Lewis used to buy the leasehold in question was moneys belonging to the plaintiffs, which he had received as general guardian. The plaintiffs to recover in this action will be required to prove that fact, 'but although it is necessary for them to make proof that the moneys so used by Lewis belonged to them, yet there is no reason why they should be called upon in advance of the trial to make to the defendant a general accounting of all the doings of both Werner and Lewis 'as general guardians. It is not at all likely that such an accounting will be necessary to establish the source from which the moneys received by Lewis came. If it is necessary, it is a matter to be proved by the plaintiffs, and to require them to give a bill of particulars of this account would compel them to. disclose to the . defendant the evidence upon which they rely to establish their cause of action. In this regard the application for a bill of particulars was a mere fishing excursion, and the information is something which the defendant is not entitled to require from them. (Phalen v. Roberts, 21 A.D. 603" court="N.Y. App. Div." date_filed="1897-11-15" href="https://app.midpage.ai/document/phalen-v-roberts-5183015?utm_source=webapp" opinion_id="5183015">21 App. Div. 603.)

The bill of particulars further requires the plaintiffs to give the dates.when Charles Lewis collected and received the $2,500, money and property of the plaintiffs, with which it is alleged in paragraph 1 of the complaint that ■ he purchased the premises in suit ; the names of the parties from whom he collected and received the said $2,500, and where and under what name the said sum of $2,500 was deposited or held by him. This also is a requirement that the plaintiffs should deliver to the defendants the evidence of the fact upon which they rely to establish their cause of action, which fact is sufficiently alleged in the complaint, so that the defendant The Franklin National Bank can have no difficulty-in ascertaining precisely what.it has to meet. For this reason alone this portion of the bill of particulars was improperly granted. But there is no prbof that the facts-called for-in this portion of the bill of particulars ' are within the special knowledge of these persons who are required'to furnish them. The plaintiffs, of course, cannot- be supposed tó-be. in a situation to know anything about it.- The informa*489tian asked fer is information as to acts and doings of Charles Lewis, There is no presumption that the other general guardian had any information about them, and there is no evidence in the case' that the facts are within her knowledge. It is cpiite true the defendant’s, attorney says in liis affidavit that the said information is, of course, peculiarly within the knowledge of the guardian ad litem” but there is no evidence of that fact and no reason to believe from anything-that appears in the case, that Airs. Werner more than anybody else was in possession of that information,

For these reasons, without considering the case any further, we-conclude that it -was erroneous to direct a bill of particulars to be-served, and the order should be reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars denied, with, ten dollars costs.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.