Opinion
June Term, 1899.
Abner C. Thomas, for the appellant.
Norman A. Lawlor, for the respondents.
It appears from the pleadings in this action that prior to 1894 Frederica Moadinger, the mother of the defendant as well as of the plaintiffs, resided with the defendant; that she was possessed of a considerable sum of money which she loaned upon bond and mortgage and that she transacted other business, the defendant acting at times as her agent. Before her death Mrs. Moadinger left the home of the defendant and resided with one or both of the plaintiffs, and upon making her will the defendant was cut off from participation in her estate, the plaintiffs being made the executors of her will. This action is brought by the executors, it being alleged that during the time that the defendant acted as agent for his mother in the transaction of her business he "received for her account and her behalf from her and divers other persons various sums of money for investment for her upon bond and mortgage; * * * that while so acting as agent for his said mother, the said Frederica Moadinger, the said defendant, in flagrant violation and disregard of his duties as such, neglected to invest and keep invested a large amount of her money and funds, so that, on or about the first day of October, 1894, he had in his possession as such agent the sum of eight thousand dollars ($8,000), which was due and payable by him to her." Upon the demand of defendant's attorney plaintiffs served a bill of particulars, following the same with an amended complaint, and the motion now under consideration was made for a fuller bill of particulars. This motion was denied and appeal comes to this court.
The granting of an order for a bill of particulars in an action of this character is discretionary with the court; and where it appears that the facts are as fully within the knowledge of the party demanding as they can be on the part of the party from whom the demand is made, and that the real object of the bill of particulars is to limit the party furnishing the same to the exact allegations of such bill of particulars, this court will not interfere to control the discretion of the court below in denying the motion. The defendant, acting as agent for his mother, must be presumed to know the facts, and it would be a hardship upon the plaintiffs to compel them to limit their claim to a bill of particulars, the knowledge of the facts not being available to them. The amended complaint points out the claim of the plaintiffs. They allege that the defendant, upon a given date, had the sum of $8,000 in his possession belonging to the plaintiffs' testator. While section 829 of the Code of Civil Procedure may prevent the defendant being a witness in his own behalf in respect to the purely personal transactions between himself and his mother, it does not prevent him from testifying as to the receipt of money from other persons in her behalf, nor as to the disposition which he made of such money. The plaintiffs cannot testify upon the questions of personal transactions between the defendant and their testator without opening the way to him, and if it should develop upon the trial of the action that the defendant has been surprised, the court has power to grant relief. ( Dwight v. Germania Life Ins. Co., 84 N.Y. 493, 503.) The pleadings put in issue the question whether the defendant had this money, or any part of it, at the time alleged in the complaint, and the plaintiffs are thus put to their proofs. They must establish the facts. They are under the same disabilities under the provisions of section 829 of the Code of Civil Procedure as the defendant, and the facts being within the special knowledge of the defendant, we are unable to discover any reason for granting the relief asked for on this appeal. (See Dwight v. Germania Life Ins. Co., supra; Cochrane Carpet Co. v. Howells, 81 Hun, 610; Constable v. Hardenbergh, 76 id. 434.)
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.