LEIGH v. ATWATER

LEIGH v. ATWATER. N. Y. Supreme Court, First Department; Special Term, October, 1877. Bill oe Particulars. In an action for damages for conspiring to withhold evidence in a previous action, the defendant may have a bill of particulars setting forth specifically the evidence withheld or concealed,—if oral, the names and residences of the witnesses who would or should have testified,—if documentary, the documents claimed to have been suppressed. Motion for a bill of particulars. Plaintiff sued defendants for $5,000 damages for an alleged conspiracy by the defendants to withhold and conceal evidence and testimony on the trial of a former action brought in the New York marine court by one of the present defendants against the present plaintiff, and in which the other present defendant was a witness, by which alleged conspiracy the present plaintiff averred he was defeated in that action, and judgment was rendered against him for $163.74 and costs. The defendants answered separately denying the conspiracy, &c., but admitting substantially the allegations of the complaint as to the bringing of the former suit, and the rendering of judgment against the plaintiff herein. The former suit involved the examination of a long account, and was sent to a referee, before whom the plaintiff therein was examined on his own behalf, and testified as to a contract with Leigh, the defendant therein.; that he had demanded payment when the contract was completed ; that he had certain conversations with him ; and that Leigh did not deny the correctness of the account. He also testified to the correctness of his accounts extending over about three years. The other defendant in the present action was the bookkeeper of the plaintiff in the former action, and there testified to the accounts and also to a conversation between the then plaintiff Atwater and Leigh. After the present action was at issue, the defendant Atwater moved for a bill of particulars, on an affidavit setting forth the substance of the pleadings in the present action, and the bringing of the former action, and on a copy of the case on appeal in the former action. His moving affidavit alleged that he had no knowledge, nor any information as to what evidence or what testimony the plaintiff intended to show was concealed or withheld ; that there were á large number of separate and independent matters in said suit, being different items in said account, and he had no knowledge as to which of them the plaintiff intended that evidence or testimony was withheld or concealed ; and that he could not properly prepare for trial until plaintiff furnished him a bill of particulars, showing specifically what evidence and whose testimony he intended to show was concealed or withheld. Nathan Cutler (H. G. Atwater, attorney), for the motion, cited Mayor, &c. of N. Y. v. Marrener, 49 How. Pr. 36, and Tilton v. Beecher, 48 How. Pr. 175; and urged that in those cases as in this, though the true state of facts was within the knowledge of the defendants, they nevertheless obtained bills of particulars. That a bill of particulars here would not disclose plaintiff’s evidence, but only the facts concerning which he proposed to offer proofs. Samuel G. Courtney, opposed. In Peters v. Link (N. Y. Superior Court, Special Term, Nov. 1877), in an action on á contract to exchange lands, on terms to be fixed by arbitration, the allegation of award in the complaint being general, a bill of particulars was ordered of the award, and time and circumstances of its delivery, &c., and of the meetings of the arbitrators, and the notices of meeting, &c. Plaintiff sued for $5,000 damages for breach of an alleged contract to exchange lands. The complaint averred, according to legal effect, the alleged contract, which provided that payment for equality of price was to be determined by arbitrators. The complaint in general terms stated that an award was made on a specified day, without giving a copy or any of the contents of the award. Defendants, on affidavits that they had never seen the award, nor any copy, and had no access to it, and were ignorant of the matters of which they desired particulars, obtained an order requiring that a bill of particulars should be furnished. Howard, Payson Wilds, for the motion, relied on Code of Civ. Pro. § 531; Doe d. Birch v. Phillips, 6 T. R. 597; Vischer v. Conant, 4 Cow. 396; Humphrey v. Cottelyou, Id. 54; Johnson v. Birley, 5 B. & A. 540; Davies v. Chapman, 6 Ad. & E. 767; Tilton v. Beecher, 59 N. Y. 176; and Orvis v. Orvis, 1 Abb. New Cas. 268. A. J. Hattlewson, for plaintiff. [MAJORITY — Barrett, J.] Barrett, J. Considering the novel and somewhat extraordinary character of this action, the defendants have a right to be fully and precisely informed of the particulars of the wrong-doing with which they are charged. This can only be effected by the granting of this motion in all its parts. Motion granted, with $10 costs to abide the event. The following order (omitting recitals) was thereupon entered: “Ordered, That the plaintiff’s attorney deliver to the defendant’s attorney a bill of particulars, showing specifically the testimony or evidence alleged in the complaint to have been suppressed, concealed and withheld by the defendants, and whether it is oral or documentary, or both, and if oral that the names and residences of the witness and witnesses who would or should have testified, be set forth in said bill of particulars, and that the documents claimed to have been withheld or suppressed, if any, be set forth therein. “ And that service of said bill of particulars be made within twenty days from the date hereof, and that meantime all proceedings herein, on the part of the plaintiff, be stayed. “And that the defendants have $10 costs of this motion, to abide the event of the action.”