McCarron v. Sire

3 N.Y.S. 659

• Court: City of New York Municipal Court
• Decided: July 15, 1888
• Status: Published

Opinion

Pitshke, J.

The power of the court to order a bill of particulars extends to all descriptions of action, whether on tort or ex contractu, and both as to matters of affirmative relief (in a plaintiff’s complaint or defendant’s counterclaim-) and as to matters set up in a defendant’s answer by way of “defense,” or as a reason why judgment should not go against him. The details may be required, and for non-obedience a proper disability or penalty may be affixed. Dwight v. Insurance Co., 84 N. Y. 493, 502, 503, 506; Kelsey v. Sargent, 100 N. Y. 602, 3 N. E. Rep. 795; Gross v. Clark, 1 Civ. Proc. R. 464. The scope of the order is ordinarily a question of discretion. Witkowski v. Paramore, 93 N. Y. 467. As an “amplification” of the pleading, where verified, the particulars must likewise be verified. See Code CivilProc. § 531; People v. Nolan, 63 How. Pr. 271. But the demand for and allowance of “particulars” ought not to be beyond the necessity of the case. To obtain an exposure of the adversary’s case, the party applying must show he cannot fairly determine the matter he is charged with, and. so cannot prepare for trial for want of knowledge or information as to what questions of fact will be litigated. Orvis v. Dana, 1 Abb. N. C. 285, 286. In an action for slander of one’s good name, and like eases, the plaintiff should furnish particulars, specifying the dates when, the places where, and in presence of what individuals, the alleged defamatory language was uttered. The exact time of the speaking is not very material. Shaffer v. Holm, 3 Civ. Proc. R. 85; Stiebeling v. Lockhaus, 21 Hun, 457, 459. When verified, the bill of particulars served, if the place of the alleged event be included, will be allowed as sufficient. Ordered accordingly No costs.