Toomey v. Whitney

Spring, J.: The parties to the action are brother and sister and are the only next of kin of. Nora Toomey who died intestate in the county of Steuben, New York State, in March, 1900.. The plaintiff resides .in the State of Missouri, and after the death of his sister Nora, assigned in writing his interest in her estate to" the defendant. He has commenced this action to set aside that transfer,, alleging that he was induced to execute the paper and part with his interest in the estate of his deceased sister by reason of fraudulent representations made to him by the defendant. The order for the bill of particulars was granted upon the affidavit of the attorney for the plaintiff and upon the pleadings,, the complaint also being verified by him. The rule of practice is well settled that motions of this kind must be founded upon the affidavit of the party and the affidavit of the attorney alone is insufficient unless some well-stated reason exists for a departure from this rule. (Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 50 N. Y. St. Repr. 417; Van Olinda v. Hall, 82 Hun, 357; Mayer v. Mayer, 29 App. Div. 393.) The reasons assigned in the affidavit of the attorney for the non-production of the affidavit of the plaintiff are: That the latter is a -non-resident of the State, which, is insufficient (Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., supra Mungall v. Bursley, [443] 51 App. Div. 380) and also -.that the plaintiff does not have personal knowledge of the extent and' value of the estate of said decedent. That fact cannot be within the actual knowledgé of the attorney for the plaintiff. (Stevens v. Smith, 38 App. Div. 119.) The affidavit also alleges that there was not time before making the motion to procure the affidavit of the plaintiff to be used upon this motion. That general statement might always be embodied in every affidavit of the attorney. It might furnish an excuse for what otherwise would be laches or to secure an extension of time for the making of the motion, but it is not a valid reason for the omission to present the affidavit of the party upon the application. . The reason why a bill of particulars in any. case is’essential is that the party asking it lacks some important information necessary to enable him to try the issues and that information is within the knowledge of his adversary. It is the keynote of the motion, therefore, that the party applying does not possess the precise facts sought. In this case the plaintiff may have full knowledge — or at least all that is important to enable him to try the case. There .is nothing in the affidavit indicating that the attorney has any personal knowledge of the facts which are set forth in his affidavit. We have, therefore, as the foundation of this motion the affidavit of the attorney, based upon information and belief, and the inadequate excuses assigned for the failure to present the affidavit of his client. We do not deem the papers sufficient to authorize the order. It is quite apparent, also, that the information required by the order appealed from will be. unnecessary upon the trial. The plaintiff claims in his complaint that the total amount of the personal estate of the decedent aggregates about $3,300. The defendant in her answer puts the amount at $2,761.56 ; that after the payment of the debts, funeral expenses, etc., there are left $1,692.56. The answer further alleges that the defendant stated to the plaintiff at the time of the assignment that the property of their sister after the payment of the debts would amount to about $1,800; that he thereupon stated that all he desired out of it was $150 and the payment of his expenses' on his trip east, which were paid, making the total amount paid to him about $200, and he thereupon voluntarily executed the transfer. . It is, therefore, not of much moment in this [444] case whether the net property, after the payment of the debts and funeral expenses, is $1,700, or several hundred dollars in excess of that sum, for the plaintiff contends that it was represented to him that the entire estate would not exceed $200, and it was in reliance lipón that statement that he made the assignment to the defendant. Concededly, one-half of the estate remaining for distribution will largely exceed the sum he received, and with that fact in the case the exact net sum of the property is unimportant. The question at issue is, under what circumstances the assignment was made by him. If he establishes that he was induced to make the transfer by the fraudulent representations of the defendant, and succeeds on that issue, the settlement of the. estate will still be carried on in the Surrogate’s Court; as the defendant has been appointed' and is acting as administratrix. The order should be reversed, with ten dollars costs and the disbursements of this appeal;- and the motion for a bill of particulars denied, with ten dollars costs. Adams, P. J., Williams, Hiscock and Hash, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs,'