Fidelity Glass Co. v. Thatcher Mfg. Co.

Full title: FIDELITY GLASS COMPANY, Respondent, v . THE THATCHER MANUFACTURING…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 1, 1903

88 App. Div. 287 (N.Y. App. Div. 1903)

85 N.Y.S. 8

Opinion

November Term, 1903.

Erwin J. Baldwin, for the appellant.

Lowen E. Ginn, for the respondent.

PARKER, P.J.:

The affidavit on the part of the plaintiff in this action claims that the bill of particulars is needed both for the purpose of enabling it to frame its reply and also for the purpose of preparing for the trial.

It is manifest from the pleadings and the record before us that the items for which such bill of particulars is asked are not needed in order to enable the plaintiff to reply. Each one of the several demands set up by way of counterclaim can be fully put at issue without the aid of any of the facts which the plaintiff seeks to so ascertain.

The bill of particulars should not, therefore, be ordered for that purpose. ( Wolff v. Kaufman, 65 App. Div. 29.)

With reference to those particulars which may be needed for the purpose of preparing for trial, it has been held that until a reply has been served no bill of particulars concerning a counterclaim will be ordered. That, until an issue over the counterclaim has actually been made, it is premature to ask for the information necessary to prepare for the trial of the same. ( American Credit Indemnity Co. v. Bondy, 17 App. Div. 328; Watertown Paper Co. v. West, 3 id. 451.) Under these authorities, it was error for the Special Term to require the statement provided for in the 3d 4th and 5th paragraphs of the order appealed from. Those all relate to matters set up by way of counterclaim.

But as to the items required by the 1st and 2d paragraphs of such order, they refer merely to new matter set up by way of a defense to the plaintiff's claim. The issue as to them was fully framed, although no reply be ever served, and as, in my judgment, they require the defendant to furnish no more than the plaintiff is fairly entitled to be informed of before preparing for trial, so much of such order must be permitted to stand.

The order appealed from should be modified by striking therefrom the 3d 4th and 5th paragraphs, and as so modified affirmed, without costs to either party.

All concurred.

Order appealed from modified by striking therefrom the 3d 4th and 5th paragraphs, and as so modified affirmed, without costs to either party.