Opinion
May Term, 1899.
Order affirmed, with ten dollars costs and disbursements.
The order denying a motion for a bill of particulars in this case was properly made. The action is upon an instrument in writing, called a certificate of deposit, dated November 24, 1874, signed by the firm of Dessar, Stern Co. This action was begun over twenty-four years after that date. The fourth and fifth defenses set up respectively a six and a twenty years' limitation. It needs no argument to show that bills of particulars as to those defenses were properly denied. The third defense is that of payment, and the plaintiff sought to require the defendants to specify in detail the days and amounts and the precise nature and character of the payments alleged to have been made. It appears that the firm was dissolved, and Mr. Stern and one of the Dessars, members of that firm, are dead. The plaintiff sues as an ancillary executor of one Levi Jacobs, who died in New Hampshire in 1892. In the plaintiff's affidavit, on which this motion was based, he states that this action was brought to recover for money deposited by Jacobs in the year 1874 with the firm of Dessar, Stern Co. in the city of New York. He further states that an original certificate of deposit, signed by Dessar, Stern Co., is in the hands of his attorney, and that he, the affiant, was informed by the widow of Levi Jacobs, the original depositor, that the certificate of deposit sued on was found in a wallet in the possession of Levi Jacobs at the time of his death, among notes and papers which had not been paid, and that he, therefore, believes that the certificate of deposit remains unpaid, and that, if the defense of payment alleged in the answer of the defendants is true, he ought to be informed of the full particulars and details thereof. No affidavit is made by Mrs. Jacobs nor by the executor in New Hampshire. It appears by the answers of the defendants that one of the Dessars and Mr. Stern died long before the commencement of this action, and that the affairs of Mr. Stern's estate have been fully settled and the estate distributed in accordance with law. In the absence of an affidavit of the executor or representative of Levi Jacobs' estate in New Hampshire or of the widow of Jacobs, from whom the plaintiff swears he derived his information, the court was right in denying this motion. Those persons may know all about this old receipt or certificate of deposit. If they do not, their want of knowledge has not been proven, nor is any reason given why their affidavits were not obtained. The order appealed from is affirmed, with ten dollars costs and disbursements. Van Brunt, P.J., Barrett and Rumsey, JJ., concurred.