Opinion
January, 1905.
Nathan Burkan, for the appellant.
Herman G. Loew, for the respondent.
This action was brought for the specific performance of a contract for the sale of certain real estate, or for damages for a failure to perform. The plaintiff alleged the contract, the payment of $800 on account of the same, and his readiness to perform all of the conditions of such contract on the day and date for the transfer of title, but that the defendant was "unable and unwilling to make the conveyance of the said premises in accordance with the said contract." The defendant moved for a bill of particulars "setting forth in detail the particulars in respect to which plaintiff claims that the defendant was unable to convey the premises more fully mentioned and described in the complaint herein," etc. The plaintiff subsequently served a bill of particulars, pursuant to an order of the court made upon his default, in which it was stated that "the plaintiff claims that the defendant was unable to give a good and marketable title to the premises described in the complaint herein, in accordance with the contract referred to in the said complaint because various grantees of Gilbert Thatford, the original owner of the premises in question with other lands on the east side of Thatford avenue, have or claim an easement or right of way over a strip of land on the easterly side of Thatford avenue, ten (10) feet in width, including the premises in question." This bill of particulars was returned as insufficient, "because it does not state the names of the various grantees of Gilbert Thatford, who have or claim an easement or right of way over the premises described in the complaint and because it does not state specifically the nature and ground of such claim."
Subsequently the defendant moved for another or further bill of particulars, and from the order denying this motion he appeals to this court. There is nothing in the moving papers to show that the defendant has not all of the information which he seeks to have the plaintiff furnish, and as the title to the premises is a matter of public record it is within the reach of the defendant quite as well as of the plaintiff, and it is not the legitimate purpose of a bill of particulars to impose a needless burden upon the opposite party. The granting of an order for a bill of particulars 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. ( Ahrens v. Moadinger, 41 App. Div. 355, 356; Constable v. Hardenbergh, 76 Hun, 434, 438, 439; Spencer v. Fort Orange Paper Co., 74 App. Div. 74.)
We think the original bill of particulars set forth the claim of the plaintiff, and that he was not called upon to disclose the names of his witnesses or other matters of evidence. The office of a bill of particulars is to amplify a pleading and to inform the party with reasonable certainty of the nature of the claim made by his adversary in order to prevent surprise and to enable him to intelligently meet the issue upon the trial ( Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319, 323, and authorities there cited), and as all of the information which the defendant demands is as fully within his reach as in that of the plaintiff, and it does not appear that the defendant is ignorant of the facts, the learned court at Special Term very properly refused to grant the order.
The order appealed from should be affirmed, with costs.
HIRSCHBERG, P.J., BARTLETT, JENKS and HOOKER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.