Mary Ella Miller, Respondent, v. Gordon D. Miller, as Executor, etc., of Alexander Miller, Deceased, Appellant

Mary Ella Miller, Respondent, v. Gordon D. Miller, as Executor, etc., of Alexander Miller, Deceased, Appellant. (No. 2.) First Department, April 7, 1911. Pleading—bill of particulars action on notes given by decedent— right of executor to copies and statement of consideration—inspection. The purpose of a bill of particulars is to limit and define the scope of the controversy. - An executor sued upon notes and a check alleged to have been made by the testator payable either to the order of plaintiff or to bearer and delivered to her, each of "which is alleged to have been given for a valuable consideration, is entitled upon a motion for a bill of particulars to receive a copy of each of the instruments and a statement as to the actual consideration of each, where his moving affidavit shows that he never heard of the instruments, and knows nothing about them. The fact that an order has already been made allowing the executor an inspection of the notes and check, is no bar to his motion for a bill of particulars. Appeal by the defendant, Gordon D. Miller, as executor, etc., from part of an' order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1911, and also from part of an .order entered on the 7th day of March, 1911, resettling the first order. Mark Ash, ■ for the appellant. Charles E. Thorn, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The defendant appeals from an order denying, in part, his motion for a bill of particulars. The plaintiff sues the executor of her deceased husband’s estate. She sues among other things upon two promissory notes and a check alleged to have been made by deceased in his lifetime, either to the order of plaintiff or to bearer, and delivered to her, each of which is also alleged to have been made for a valuable consideration. The defendant, who was the brother, of the deceased and his business partner, swears that he never heard of the notes and check until a claim was served upon him as executor, and that he knows nothing at all ahont them.' His motion was that he . should be furnished with a copy of each, of the instruments, and with a statement as to what was the actual consideration of each. It appeared upon the hearing of the motion that an order had already beerj made allowing the defendant an inspection of the notes and check, whence it was argued that it would be unnecessary to furnish defendant with copies thereof, and ‘ upon this ground, apparently, no particulars were ordered to be given respecting said notes and check.' It is quite apparent that an inspection of] the notes and check will furnish. no information as to the real consideration supporting them. As between plaintiff and' defendant the consideration may be inquired into, and the jlefendant is entitled to know what the plaintiff claims that the consideration really was. The pur- • pose bf the bill of particulars containing such information is not to furnish evidence for the defendant but to limit and define the scope^ of the! controversy. As the defendant is an executor he is not to bje presumed to have .knowledge ón the subject, and he affirmatively declares that he has no such knowledge. There isj abundant authority for granting a motion for a bill of particulars under such circumstances. (Gas-Works Co. v. Standard Gas-Light Co., 47 Hun, 255; Riggs v. Buckley, 2 App. Div. 618; Harris v. Drucklieb, 128 id. 276.) The order, in so far as it denied a bill of particulars' of the . consideration alleged to have been given for the notes and check, should be reversed, with ten dollars costs and disbursements, and the motion ¡for such particulars granted. Ingraham, P. J., MgLaughlin, Miller and Dowling, JJ., concurred. ! . Order reversed to the extent stated in opinion, with ten dollars costs and disbursements, and motion granted. Settle . order on notice. i