Gardinier v. Knox

Learned, P. J.: The pleadings in this case are very similar to those in Stiebeling v. Lockhaus (21 Hun, 457). The difference, that the words in that case were spoken in German and in this in English, is immaterial on this motion. The place is stated as “ at Russell; ” the time as on or about the 10th day of October, 1880, and again as on or about the 20th day of July, 1880; the persons present as “divers good and worthy citizens.” "Where the complaint used similar words, the court, in the case above cited, ordered a bill of particulars. Tilton v. Beecher (59 N. Y., 176) is authority for the power. The question, then, is one of discretion. The case of Mitchell v. Mitchell (61 N. Y., 398), cited by the plaintiff, was an appeal from a judgment, and only determines that on an allegation in a complaint charging adultery with a person [503] unknown to the plaintiff, evidence of adultery with a person not named might be admitted. That does not touch this case. But it is insisted by the plaintiff that he cannot furnish the particulars requested. This does not appear. The plaintiff makes no affidavit His attorney states the plaintiff’s absence, and says that he believes that the plaintiff is ignorant of the times and places, and is unable to state them further than they are stated. But the attorney himself says that he has visited most of. the witnesses by whom plaintiff expects to prove his cause of action, and knows what they have stated that they will testify .to. Therefore the attorney knows, or may know, at what spot the words were spoken; about'what day, and in whose presence. So that there seems to be no inability on the plaintiff’s part to give the information if it should be required. The defendant says, in his affidavit, that he has no knowledge, information, belief or suspicion as to the times or places, or in whose presence, the plaintiff expects to prove the alleged words. And certainly the complaint gives little information, for under it proof need not be confined to the day stated; it might be given as to any place within the town of Russell, and as to any persons shown to be present. If the defendant knew the times and place where the occurrence would be shown, he could obtain proof of his own whereabouts. The learned justice who denied the motion seems to have been influenced in his denial by the case of Turner v. James, decided by this court in January, 1882. But that case was quite different That was an action by a husband for the alleged seduction of his wife. The defendant asked a bill of particulars. It was shown, in. opposition to the motion, that much of the evidence on which the plaintiff relied consisted of such conduct between the defendant and the plaintiff’s wife as might lead a jury to infer that an. 'improper intimacy existed, while the jffaintiff did not know and could not ascertain any precise day or place at which the alleged adultery took place. If, therefore, he was limited to a precise day and place, he might bo shut out from proving the alleged acts of familiarity, which were claimed to be evidence that the alleged wrong had been done. Nothing of that kind exists in this present case. Slander is not to be proved by suspicious acts, while the act of adultery can seldom be proved otherwise. And, in that particu [504] lar case, the plaintiff stated that he was not aware that any single witness could prove the fact of adultery. The plaintiff also stated other facts, which we need not specify, and which showed that it would be hardly possible for the plaintiff to state the times and places with particularity. Under these circumstances the court thought that it was not a proper case for a bill of particulars. But we do not think that, as is suggested by the learned justice, there is any difference between this department and the first department in the principles applicable to such motions. Neither department would think it right to require a bill of particulars when it was not in the power of the plaintiff to give one, and each would require such a bill when it would tend to the fair preparation of the case for trial. The language used in the opinion in the case of Stiebeling v. Zochaus seems applicable to the present ease. We think the order should be reversed, with ten dollars costs and printing disbursements, and the motion granted; with ten dollars costs, to abide the event of the action. Bocees, J., concurred.