Cunard v. . Francklyn

19 N.E. 92, 111 N.Y. 511, 19 N.Y. St. Rep. 641, 66 Sickels 511, 1888 N.Y. LEXIS 1042

• Court: New York Court of Appeals
• Decided: December 4, 1888
• Status: Published

Opinion

Gray, J.

If the court had the power to order a bill of particulars in this action, then its exercise of that power will not be reviewed by us. The purpose of its exercise, in every case, must be deemed to be, as it was said in Dwight v. Germania Insurance Company (84 N. Y. 493), " to reach exact justice between the parties, by learning just what is the truth, and to learn what is the truth by giving to each party all reasonable opportunity to produce his own proofs and to .meet and sift those of his adversary.” There is no restriction upon the power; it extends to all descriptions of actions, where justice demands that a party, whether plaintiff or defendant, should be apprised of the particulars of the facts his adversary expects to prove; and the scope of the order must ordinarily be a question of discretion to be governed by the circumstances. (Dwight.v. Germania Ins. Co., supra; Witkowski v. Paramore, 93 N. Y. 467.) Here the plaintiff has sued the defendant for the wrongful detention and conversion of personal property. The defendant meets the claim by an answer, which, while denying the conversion, also alleges that plaintiff placed his property with defendant under an arrangement and with power to use and invest the same in transactions on joint account, and that heavy losses were incurred in the course of defendant’s management of the estate; of all of which the plaintiff had knowledge and was furnished with statements.

Ho affirmative relief is asked by the defendant; but he has elected to base his defense to the claim upon such allegations, in addition to the denial of the charge. It may have been unnecessary to add those allegations by way of defense; but, by so doing, the defendant is estopped from denying their materiality on this motion. ISTor can he be heard to complain, if the trial court orders him to furnish the plaintiff with the particulars of the losses alleged in his answer to have been incurred, through his transactions with the funds in his keeping, personal knowledge of which, it is to be presumed, is in him.

The provision of the Code is broad enough .to effect its evident design of investing the court with the discretionary power to compel a party to furnish his adversary with further information before trial, than is contained in his pleading, and we think that power may be exercised in such an action as this, when it seems to the court • that justice requires its exercise, under the circumstances disclosed by the pleadings and moving papers.

As it does not appear that the court has transcended its power in granting the order appealed from, this appeal should be dismissed with costs.

All concur.

Appeal dismissed.