Harry B. Schepps, Appellant, v. Japanese Fan Company, Respondent

Harry B. Schepps, Appellant, v. Japanese Fan Company, Respondent. First Department, June 2, 1911. Pleading — Lili of particulars — assault and battery — names of ■ -witnesses. Where in an action to recover damages for assault and battery, plaintiff, who was ordered to furnish, a bill of particulars stating the names of the persons who committed the assault and the names of those who seized and searched him as well as the names of those in whose presence such acts were committed, served a bill of particulars giving the name of the defendant’s officer vdio committed the assault and stating that beyond giving said name he had no knowledge of the names of the other agents of the defendant who searched him or of those who witnessed the assault,' . a motion, for a further bill of particulars requiring him to give the names or otherwise identify the other persons concerned in and who witnessed the assault should be denied. . Appeal by the plaintiff, Harry B. Schepps, from an order of the Supreme Court, made at the Hew York Special Term ■ and entered in- the office of the clerk of the county of New York on the 29th day of March, 19X1, directing the plaintiff to serve a further bill of particulars. Edward G. Delaney, for the appellant. Jacob Newman, for' the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Action to recover damages for assault and battery. The complaint alleges, in substance, that on the 28th day of June, 1910, while the plaintiff was lawfully in the defendant’s place of business, it maliciously and willfully assaulted the plaintiff, and, without provocation, publicly and forcibly seized and searched his person and clothing, abused and maltreated him, or caused the same to be done, and by reason of such unlawful acts of the defendant, its agents, servants and employees plaintiff was damaged to the extent of $10,000, for which judgment is demanded. The answer put in issue the material allegations of the complaint. After issue had been joined the defendant, upon notice, obtained an order requiring the plaintiff to serve upon its attorney a bill of particulars setting forth, among other things, the name of the person or officer of the. defendant who seized, searched and assaulted the plaintiff, or caused the same to be done, and the name of the person or officer of the defendant who assaulted and maltreated the plaintiff, as well as the names of the persons in whose presence such acts were committed. In pursuance of this order the plaintiff served a bill of particulars stating that the assault was committed by one'Carl J. Deutsch, the secretary and an officer of the defendant, and that the plaintiff was seized, searched and maltreated by Deutsch and other agents and employees of the defendant whose names are unknown to the plaintiff. The bill of particulars, which was verified, also contained a statement that “beyond giving the name of the said Carl J. Deutsch, this plaintiff is now -unable and has no present knowledge of the full and coi*rect names of these other persons in whose presence this plaintiff was violently and publicly seized and taken hold of, and by force and violence searched or caused to be searched in the said defendant’s store or place of business. ” After, the bill of particulars had been served the defendant again moved, on notice, for a further hill of particulars, which should set forth the names ■or otherwise identify the different agents and employees of the defendant “through whom this plaintiff was publicly and forcibly seized and searched or caused to be seized and searched;” the names of the persons or otherwise who maltreated and .abused the plaintiff or otherwise identify such persons; and the names of the persons in whose presence the acts complained of were committed. The motion was granted and the plaintiff appeals. The plaintiff, in the bill of particulars served, gave the name of the officer of the corporation who committed the alleged illegal acts or caused the same to be committed, and then stated that the names of the other persons were unknown to him, as were the names of the persons in whose presence the acts complained of were committed. Obviously if the plaintiff does not know the names of these persons he cannot give them. Having given the name of the officer who did commit the assault, or was responsible for it, the defendant is in a position to obtain the further, information desired, if it exists. It certainly cannot require the plaintiff, to furnish it if he is unable to do so, because •it is not the office of a bill of particulars to require an impossi- , bility. The bill of particulars served complied with the order directing the same, in so far as the plaintiff was able to do so. For that reason the motion for a further bill of particulars should have been denied. . . The order appealed from, • therefore, is reversed,- with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., Lahghlin, Clarice and Scott, JJ., concurred. . ■ , Order reversed, with ten dollars costs and disbursements, and ■ motion denied, with ten dollars costs.'