Scheinwald v. Scheinwald

23 Misc. 2d 175, 205 N.Y.S.2d 296, 1960 N.Y. Misc. LEXIS 3052

Opinion

Mario Pittoni, J.

Motion to modify defendant wife’s demand for a bill of particulars is granted.

This is an action for annulment based on the defendant’s alleged fraud, prior to the marriage, of falsely representing to the plaintiff that she would have children after the marriage, and that she would engage in normal sexual intercourse within a certain time after the marriage.

Item 2 seeks to find out in whose presence the representations were made. This case presents no special or unusual circumstances which requires a deviation from the general rule that a party is not required to furnish the names of witnesses (Szarf v. Blumenfeld, 5 A D 2d 887 [2d Dept.]; McCready v. Island Park-Long Beach, 235 App. Div. 691 [2d Dept.]).

Item 4 requests the substance of the representation and the language which constituted the representations. The substance of the representation is a sufficient disclosure to enable the defendant to properly defend herself. The defendant, in effect, wants the “exact” language. The substance is sufficient (Rustin v. Rustin, 228 App. Div. 839 [2d Dept.]; Tripp, A Guide to Motion Practice, § 49, p. 131).

Plaintiff need not comply with items 6, 7 and 8 as they seek particulars which involve a disclosure of plaintiff’s evidence. (Solomon v. Travelers Fire Ins. Co., 5 A D 2d 1017 [2d Dept.]; Mertz v. de Landa, 260 App. Div. 1034 [2d Dept.].) Motion granted. Submit order.