Opinion
March Term, 1896.
Present — Van Brunt, P.J., Williams, Patterson, O'Brien and Ingraham, JJ.
Order modified as directed in opinion, and affirmed as modified, with ten dollars costs and disbursements of appeal to abide the event of the action. —
The court was clearly right in ordering a bill of particulars of the consideration referred to in the eighth subdivision of the answer. The assignment on its face recited a consideration of one dollar. The defense, as stated in such subdivision of the answer, is that the consideration recited was not the real consideration, and that the real consideration was not sufficient and valid in law to support the making or delivery of the instrument, and that such instrument was and is, therefore, void. The plaintiff is entitled to know what actual consideration there was for the assignment which made it void. The same consideration applies to the second, third, fourth and fifth clauses of the order requiring particulars of the defense set up in the ninth subdivision of the answer. The plaintiff is entitled to know the representations made by which the defendant was induced to deliver the transfer to Belden. As to the sixth and seventh clauses of the order, we do not think that they relate to a proper subject or subjects of which particulars should be ordered. So far as appears, they are included within the particulars to be furnished under the prior provisions of the order. We think, therefore, that the order appealed from should be modified by striking out the sixth and seventh clauses thereof, and that, as modified, the order should be affirmed, with ten dollars costs and disbursements of the appeal to abide the event of the action.