Gerard B. Werner and Fredericka K. Werner, Infants, by Sophie Werner, Guardian ad Litem, Appellants, v. The Franklin National Bank of the City of New York, Respondent, Impleaded with Others

Gerard B. Werner and Fredericka K. Werner, Infants, by Sophie Werner, Guardian ad Litem, Appellants, v. The Franklin National Bank of the City of New York, Respondent, Impleaded with Others. Bill of particulars — denied where it requires a disclosure of the.plaintiffs’ evidence and of facts not shown to he known to the plaintiffs. la an action brought in the names of two infants, by their surviving general guardian, to procure an adjudication that property, the title to which was taken by their deceased general guardian in his individual capacity, had been purchased with the infants’ money, and as trustee for them, and that a mortgage executed by such deceased guardian upon the property to secure the obligation of a firm of which he was a member, was hot a lien on the property, the complaint alleged 4-hat on a certain date the deceased guardian, ostensibly in discharge of his duties as such, invested the sum of $2,500, received and held by him as such .guardian, in the purchase of the real estate in question, at a referee’s sale in foreclosure. Jeld, that it was improper for the court, upon the motion of the mortgagee, who was ma.de a party defendant, to make an order requiring the plaintiffs to furnish a bill of particulars, stating the dates upon which both the general guardians took charge of certain personal property of the plaintiffs and moneysidue and owing to them; what saidmoneys consisted of and their amount; the names of the parties from whom the said property and moneys were received, and how and at-what times the general guardians invested and reinvested such moneys, as alleged in the complaint; - That a further provision of the order requiring that the bill of particulars state' ¿the dates when the deceased guardian received the §2,500 with which it was ¿alleged that he purchased the premises in suit, the names of the' parties from whom he collected and received the same, and where and under what name the ■sum of §2,500 was deposited or held by him, was also'objectionable;’ that *he effect of this, as well as of the other provisions of the order mentioned, would be to require the plaintiffs to deliver to the defendants the evidence of the fact upon which they relied to establish their cause of action; . That the order was erroneous for the further reason that there was no presumption or proof that- the surviving guardian had any knowledge of the acts and doings of the deceased guardian, statements in regard to which were called for by the order, and none that the infants were acquainted with them. Appeal by the plaintiffs, Gerard B. Werner and another, infants, by Sophie Werner, guardian acl litem, from' an order of the Supreme donrt, made at the New York Special Term and entered in the ¡office of the clerk of the county of New York on the 17th day" of April, 1899, as resettled by an order entered in said, clerk’s office on the 20th day of April, 1899, requiring the plaintiffs to furnish the defendant, The Franklin National Bank of the city of New York, with a bill of particulars. Benno Loewy for the appellants. Jonathan C. Ross, for the respondent. [MAJORITY — Rumsey, J.:] Rumsey, J.: In the month of May, 1890, Charles Lewis and Sophie Werner were appointed general guardians of the two plaintiffs in this action, and entered upon the duties of their trust. In the year 1898 Charles Lewis, who had in his hands about $2,500 belonging to the plaintiffs, purchased with that money a leasehold interest in premises situated in the city of New York; but, although the property was bought with the money of the plaintiffs, Lewis, instead of taking a deed to the plaintiffs, or to himself and Werner as general guardians,, caused the deed of conveyance of the premises to be made directly to himself personally, without the. knowledge of any of the other interested parties. He put the deed upon record, and thereafter the title to the property was apparently in himself individually. The firm of which Lewis was a member was indebted to the Franklin National Bank, and for the purpose of securing that indebtedness they delivered to that bank a mortgage upon several parcels of land in the city of New York, one of which was the premises in question. Lewis has died. The Franklin National Bank has begun an action to foreclose the mortgage given to it by the firm of which Lewis was a member. This action is brought to procure a judgment declaring that Lewis took the property bought with the plaintiffs’ money, as trustee for them, and to require that it shall be conveyed to them, and asking further that the mortgage given to the Franklin National Bank be adjudged not to be a lien upon said property. The allegation of the complaint in respect of which the bill of particulars was ordered, is that about the 5th day of September, 1895, Charles Lewis, acting as one of the general guardians of the plaintiffs, and ostensibly in the discharge of his duties as such general guardian, had invested the sum of $2,500, moneys and property, of the plaintiffs, collected, received and held by him as such general guardian as aforesaid, in a purchase at referee’s-sale in foreclosure of a certain leasehold, etc. The bill of particulars requires the plaintiffs to state¿ first, the dates upon which Sophie Werner and Charles Lewis took charge of certain personal property of the plaintiffs, and moneys due and owing to the plaintiffs; what said moneys consisted of; the amount of said moneys ; the names of the parties from whom the said property and moneys were received, and how and at what times the said Sophie Werner and Charles Lewis invested and reinvested such moneys as alleged in paragraph 1 of the complaint. How these facts can be of the slightest materiality in the trial of this action we are unable to see. It is true that the complaint alleges that the general guardians took charge of the personal estate. of the plaintiffs and proceeded to invest and reinvest it, and otherwise to discharge the duties imposed upon them by their guardianship. , It is also true that it is alleged that the $2,500 which Lewis used to buy the leasehold in question was moneys belonging to the plaintiffs, which he had received as general guardian. The plaintiffs to recover in this action will be required to prove that fact, 'but although it is necessary for them to make proof that the moneys so used by Lewis belonged to them, yet there is no reason why they should be called upon in advance of the trial to make to the defendant a general accounting of all the doings of both Werner and Lewis 'as general guardians. It is not at all likely that such an accounting will be necessary to establish the source from which the moneys received by Lewis came. If it is necessary, it is a matter to be proved by the plaintiffs, and to require them to give a bill of particulars of this account would compel them to. disclose to the . defendant the evidence upon which they rely to establish their cause of action. In this regard the application for a bill of particulars was a mere fishing excursion, and the information is something which the defendant is not entitled to require from them. (Phalen v. Roberts, 21 App. Div. 603.) The bill of particulars further requires the plaintiffs to give the dates.when Charles Lewis collected and received the $2,500, money and property of the plaintiffs, with which it is alleged in paragraph 1 of the complaint that ■ he purchased the premises in suit ; the names of the parties from whom he collected and received the said $2,500, and where and under what name the said sum of $2,500 was deposited or held by him. This also is a requirement that the plaintiffs should deliver to the defendants the evidence of the fact upon which they rely to establish their cause of action, which fact is sufficiently alleged in the complaint, so that the defendant The Franklin National Bank can have no difficulty-in ascertaining precisely what.it has to meet. For this reason alone this portion of the bill of particulars was improperly granted. But there is no prbof that the facts-called for-in this portion of the bill of particulars ' are within the special knowledge of these persons who are required'to furnish them. The plaintiffs, of course, cannot- be supposed tó-be. in a situation to know anything about it.- The informatian asked fer is information as to acts and doings of Charles Lewis, There is no presumption that the other general guardian had any information about them, and there is no evidence in the case' that the facts are within her knowledge. It is cpiite true the defendant’s, attorney says in liis affidavit that the “ said information is, of course, peculiarly within the knowledge of the guardian ad litem” but there is no evidence of that fact and no reason to believe from anything-that appears in the case, that Airs. Werner more than anybody else was in possession of that information, For these reasons, without considering the case any further, we-conclude that it -was erroneous to direct a bill of particulars to be-served, and the order should be reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars denied, with, ten dollars costs. Van Brunt, P. J., Barrett and Patterson, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.