Opinion
07-07-1931
MAGIE et al. v. MAGIE et ux.
William M. McConnell, of Newark, for complainants. Aquila N. Venino, of Newark, for defendants.
Syllabus by the Court.
Interrogatories may not be resorted to to pry into an opponent's case. They may be used only for the purpose of establishing the case of the proponent at the hearing, and they may not be submitted until after issue is joined.
Syllabus by the Court.
A bill of particulars has an entirely different function from interrogatories. It is for a discovery of an opponent's case with greater particularity than is disclosed by his pleadings. It may be sought before answer in order to appropriately set up the defense, and, after answer, to intelligently meet the opponent's case at the trial.
Additional Syllabus by Editorial Staff.
Suit by Job H. Magie and others against Ernest L. Magie and wife. On counter motions to strike out interrogatories and on motion for bill of particulars.
Defendant's motion for bill of particulars allowed in part, defendant's interrogatories stricken, and complainant's interrogatories allowed in part.
William M. McConnell, of Newark, for complainants.
Aquila N. Venino, of Newark, for defendants.
BACKES, Vice Chancellor.
The object of the second cause for action is to cancel a mortgage on the property of the complainants, given to the male defendant by his mother, now deceased, the former owner, upon the grounds as charged, that it was given without consideration and was executed "without (the mortgagor's) knowledge of the legal and practical effect," and that it ""was not given voluntarily, but was given under duress." The answer denies the charges. The defendant now asks for a bill of particulars of the charges. He also submitted Interrogatories as to the particulars of the charges, and motion is made to strike them out. A counter motion is made to strike out the complainants' interrogatories.
Interrogatories may not be resorted to to pry into an opponent's case. They may be used only for the purpose of establishing the case of the proponent at the hearing, and they may not be submitted until after issue is joined. Chancery Rule 84. A bill of particulars has an entirely different function from interrogatories. It is for a discovery of an opponent's case with greater particularity than is disclosed by his pleadings. It may be sought before answer in order to appropriately set up the defense in the pleadings and after answer to intelligently meet the opponent's case at the trial. Instructive opinions on the practice may be found in the recent case of Buermann v. Morris, 152 A. 341. 8 N. J. Misc. R. 811, by Mr. Justice Bodine and in the earlier case of Watkins v. Cope, 84 N. J. Law, 143, 86 A. 545, by Mr. Justice Parker; also in Vice Chancellor Fallon's opinion in Griffin v. Londrigan, 106 N. J. Eq. 247, 150 A. 328.
The defendant may have a bill of particulars concerning the charges that the mortgage was executed "without knowledge of the legal and practical effect," and that it "was not given voluntarily, but was given under duress." These charges are of wide range and are so indefinite as to be meaningless as pleadings. LeGendre v. Byrnes, 44 N. J. Eq. 372, 14 A. 621. The other charge that the mortgage was given without consideration is not open to elaboration. It is a matter within the defendant's knowledge and correct pleading required of him that he discoverthe consideration in his answer. Vineland v. Maretti, 93 N. J. Eq. 513, 117 A. 483. The omission invited an exception (now motion) for insufficiency of the answer on that score.
The defendant's interrogatories are directed to the subject-matter of his bill of particulars. They seek disclosures of the complainants' case, not informative to support the defense, and will be stricken out.
The complainants' first, second, third, and fourth interrogatories inquire as to the consideration of the mortgage, when and how the debt was incurred, and are proper. The rest will be stricken out as not bearing on the issue.