Wilks v. Greacen

120 A.D. 311, 105 N.Y.S. 246, 1907 N.Y. App. Div. LEXIS 1165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1907
• Status: Published

Opinions

Ingbaiiam, J.:

It seems to me that the rule that where the allegations of the answer are in effect a denial of a material allegation of the complaint it is not proper to require the defendants to give a bill of particulars, which would limit them as to their proof, applies to this case. The defendants should be at liberty to introduce any evi-. dence that they can to disprove the main facts upon which the plaintiff bases her right to relief. That the defendants unnecessarily .made a part of their denial of a material allegation of the complaint an affirmative allegation that they had property does not justify the court in requiring them to specify what property they had, and thus limit them in the proof with which they can meet the plaintiff’s allegation upon which her right "to relief depends. I think the case is controlled by Barreto v. Rothschild (93 App. Div. 211). .The principle is the same, and it should' be followed. It does' not follow, because the court has power to order a bill of par"ticulars, that in this case that power should be exercised. If the plaintiff desires evidence as .to the property of the defendants, she can .obtain such evidence by an examination o.f tlie defendants before trial; but evidence to prove or disprove her allegation should not be sought by a bill of particulars.

" I think the order appealed from should be reversed, with ten dollars costs and. disbursements, and the motion denied, with ten dollars costs. ’ .• ■

Clarke and Scott, JJ., concurred .; Lafghlin and McLafghlin,. JJ\, dissented. ...