Witkowski v. . Paramore

93 N.Y. 467 | NY | 1883

This was a proper case for requiring the defendant to furnish particulars of his claim. (Dwight v. Germania L. Ins. Co.,84 N.Y. 493.) It is to be assumed on this appeal that the plaintiff will establish on the trial that as between himself and Lichtenheim, he was the equitable owner of the claim against the United States and entitled to recover the money collected thereon.

The answer, after setting forth that the claim was originally assigned by Lichtenheim to the defendant's firm as collateral security, alleges a subsequent absolute transfer by Lichtenheim to the firm in satisfaction of an indebtedness of more than $15,000 for moneys loaned, advanced, expended and laid out by defendants for the benefit, and at the request, of Lichtenheim, and the further consideration of $800 paid to him, and denies that the defendants had any notice that the plaintiff had any interest therein. This defense the defendants were bound to prove on the trial in case the plaintiff established his equitable ownership of the demand, or otherwise upon the admission in the answer that the claim was originally assigned to them by Lichtenheim as collateral security, they would be bound to account to the plaintiff for any surplus beyond their advances.

It was competent for the plaintiff to disprove the alleged absolute transfer. To meet this defense the plaintiff was entitled to be informed of the particulars of the alleged loans and advances in consideration of which, as alleged, the transfer was made. The order for particulars required the defendants to state the time or times, and the amounts of the several advances, whether made by check or otherwise, and whether made to Lichtenheim in person, and if not, to whom, and also by what member of the defendants' firm.

It is claimed that the order is broader than it should have been. But we are of opinion that the court did not transcend its power in this respect. The scope of an order for particulars must ordinarily be a question of discretion, depending upon the circumstances. Such an order is not reviewable in this court, unless it clearly transcends the power of the court as defined by the general course of practice in respect to bills of particulars. The order in question calls for nothing except what is or may be presumed to be within the personal knowledge of the defendants. The requirement that the defendants shall disclose how the advances were made, and by and to whom, does not call for any disclosure beyond what may be fairly required to enable the plaintiff, who was a stranger to the transactions, to prepare to meet the defense. The case of Dwight v. Germania L. Ins. Co. (supra) sustained an order for particulars, which was quite as comprehensive and searching as the one in question, although relating to defenses of a different character.

We think the court had jurisdiction to grant the order, and the appeal should, therefore, be dismissed.

All concur.

Appeal dismissed.