Opinion
May, 1905.
J. Newton Fiero, for the appellants.
Countryman, Nellis Du Bois, for the respondents.
The action is in form ejectment, but the plaintiffs allege as the reason why they are entitled to immediate possession of the real property in controversy, that the defendants have so materially violated various conditions of a lease, under which they have long occupied, that they were and are entitled to no renewal thereof or to continue to occupy thereunder, and that the lease in fact has not been renewed.
The court properly directed the plaintiffs to furnish the defendants with a bill of particulars; but the order is much too broad. It is not the office of a bill of particulars to expose one's evidence to his adversary. ( Morrill v. Kazis, 8 App. Div. 304. ) Its purpose is only to amplify the pleading and indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made in order that surprise upon the trial may be avoided and the issues more intelligently met. ( Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319. )
The plaintiffs, although the owners, are not entitled to possession as against the defendant tenants if the lease is a subsisting one. They allege as a reason why they are in fact entitled to possession, that the defendants have violated certain conditions and broken certain covenants which have not only forfeited their right to continue to occupy the premises, but have destroyed their right to a renewal of the lease. What conditions and covenants, and when and how violated and broken, which plaintiffs claim forfeited defendants' rights under the lease, and what defendants did and when, which deprived them of their right to renew said lease, plaintiffs should give a bill of particulars concerning. As to the actual renewal of the lease as provided by its terms, or otherwise, the defendants have as much knowledge as the plaintiffs, and no further particulars should be required.
The order should be modified by limiting its provisions as indicated, and as so modified should be affirmed, without costs to either party.
All concurred.
Order modified as stated in opinion, and as so modified affirmed, without costs. If order not agreed upon, to be settled by HOUGHTON, J.