Opinion
June, 1904.
Frank Hasbrouck, for the appellant.
Charles Morschauser, J. Hackett and J.L. Williams, for the respondents.
The defendants are the members of the board of supervisors of Dutchess county and its late sheriff; the plaintiff is a resident and a taxpayer therein. The complaint alleges that the sheriff presented a bill against the county to the board which is largely in excess of the true amount the sheriff is legally entitled to claim, and that the board has audited the same, allowed it and ordered it paid in full. The complaint also alleges that an item of over $13,000 was for 4,262 2/7 weeks board of prisoners in the county jail of Dutchess county, charged for at the rate of $3.25 per week, and that this represents an average of eighty-one prisoners boarded by the sheriff in the jail for each day of the whole period covered by the bill. The plaintiff alleges upon information and belief that at no time during that period were there as many as eighty-one prisoners boarded at the jail, and that the largest number of prisoners confined in the jail at any one time during that period was sixty-five. The averment is made that this is an overcharge, is illegal and unjust, and that the allowance by the board of supervisors was with knowledge of its character, and was fraudulent and unlawful, and a demand for judgment is made that the resolution allowing the bill and ordering it paid be declared void, and that the supervisors be restrained and enjoined from levying a tax for its payment until a reaudit, which shall eliminate the illegal charges. The defendants have not answered, but moved for a bill of particulars specifying in detail each and every item which is in excess of the true amount due the sheriff, the name of each and every person or prisoner, and in what manner the defendants fraudulently and corruptly allowed and ordered paid the full amount of said bill. The motion was granted, and in addition to making the direction asked for, to which reference has been made, further provided that the plaintiff should give "full particulars of the name, date, place and person, so that said defendants may have full knowledge of all the facts alleged in said complaint as to the items, dates, places, times and persons, and fully be capable of answering the same." The affidavits read in support of the motion stated that the defendants could not properly prepare or verify an answer without such a bill of particulars.
The order must be reversed. It was "prematurely granted if based upon the ground that it was necessary for the purpose of the defense of the case. It could not be said any defense would be made until an issue was raised by the service of an answer." ( American Credit Indemnity Co. v. Bondy, 17 App. Div. 328, 329; Watertown Paper Co. v. West, 3 id. 451; McClellan v. Duncombe, 26 id. 353.)
Nor can the order be sustained on the theory that the bill of particulars is necessary to enable the defendants to answer. Section 500 of the Code of Civil Procedure provides what an answer must show. It reads: "The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. * * *" As far as the sheriff is concerned he either knows or does not know whether the charges in his bill are correct and legal; if he knows them to be correct, he may specifically deny the complaint's allegations of illegality; if he knows the allegations to be true, he will admit them or fail to answer at all; while if it can be that he has no knowledge or information sufficient to form a belief on the matter, an allegation to that effect raises a perfect issue. Either course could be pursued by him as well without as with the aid of a bill of particulars. The same is true as far as the defendant supervisors are concerned. ( American Credit Indemnity Co. v. Bondy, supra.)
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.