Opinion
June, 1896.
James A. Ryan, for appellant.
A.H. Berrick, for respondent.
The defendant having moved before answer for a bill of particulars, it was necessary for him to show that the particulars were required to enable him to prepare his answer; and it now appearing that he has answered since the making of the order on that motion this court will not entertain the appeal, as by his own act defendant has deprived himself of any advantage to be gained by a reversal. Woodruff v. Austin, 16 Misc. 543; 38 N.Y.S. 787.
The defendant also asked in the same motion for the particulars, in order to prevent surprise and be prepared for trial of the cause, but on that branch, the motion being made before issue joined, it was premature. Watertown Paper Co. v. West, 38 N.Y.S. 229; Pots v. Herman, 7 Misc. 5.
The names of the person or persons in whose presence and hearing the words were spoken seem to us to be of grave importance, as otherwise the defendant upon the trial may be taken wholly by surprise by the production of testimony he is wholly unprepared to explain or contradict otherwise than by his own denial, and, we think, it would be a proper exercise of discretion to direct a bill of particulars specifying the names of the person or persons in whose presence the words are claimed to have been spoken. Stiebeling v. Lockhaus, 21 Hun, 457.
For this relief the defendant is granted leave to apply at Special Term.
The appeal must be dismissed, with $10 costs.
VAN WYCK, Ch. J., and CONLAN, J., concur.
Appeal dismissed, with $10 costs.