Opinion
April 7, 1911.
Mark Ash, for the appellant.
Charles E. Thorn, for the respondent.
The defendant appeals from an order denying, in part, his motion for a bill of particulars. The plaintiff sues the executor of her deceased husband's estate. She sues among other things upon two promissory notes and a check alleged to have been made by deceased in his lifetime, either to the order of plaintiff or to bearer, and delivered to her, each of which is also alleged to have been made for a valuable consideration. The defendant, who was the brother of the deceased and his business partner, swears that he never heard of the notes and check until a claim was served upon him as executor, and that he knows nothing at all about them. His motion was that he should be furnished with a copy of each of the instruments, and with a statement as to what was the actual consideration of each. It appeared upon the hearing of the motion that an order had already been made allowing the defendant an inspection of the notes and check, whence it was argued that it would be unnecessary to furnish defendant with copies thereof, and upon this ground, apparently, no particulars were ordered to be given respecting said notes and check. It is quite apparent that an inspection of the notes and check will furnish no information as to the real consideration supporting them. As between plaintiff and defendant the consideration may be inquired into, and the defendant is entitled to know what the plaintiff claims that the consideration really was. The purpose of the bill of particulars containing such information is not to furnish evidence for the defendant but to limit and define the scope of the controversy. As the defendant is an executor he is not to be presumed to have knowledge on the subject, and he affirmatively declares that he has no such knowledge. There is abundant authority for granting a motion for a bill of particulars under such circumstances. ( Gas-Works Co. v. Standard Gas-Light Co., 47 Hun, 255; Riggs v. Buckley, 2 App. Div. 618; Harris v. Drucklieb, 128 id. 276.)
The order, in so far as it denied a bill of particulars of the consideration alleged to have been given for the notes and check, should be reversed, with ten dollars costs and disbursements, and the motion for such particulars granted.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order reversed to the extent stated in opinion, with ten dollars costs and disbursements, and motion granted. Settle order on notice.