American Transfer Company, Appellant, v. George Borgfeldt & Company, Respondent

American Transfer Company, Appellant, v. George Borgfeldt & Company, Respondent. Bill of particulars as to fraud—denied when it is within the knowledge of the moving party — a MU of particulars is not intended to give information as to the facts upon which a pa/rty relies. In an action brought to reform a written contract upon the ground that the same had been entered into by a mistake on the part of the plaintiff and by a mistake or fraud on the part of the defendant, the defendant interposed an answer denying the material allegations of the complaint. Held, that an order made after issue joined, requiring the plaintiff to furnish a bill of particulars, setting out in detail the facts constituting the alleged fraud, should be reversed upon the ground, as stated by Van Brunt, P. J., and McLaughlin, J., that the alleged fraud was necessarily as much within the knowledge of the defendant as within the knowledge of the plaintiff, and as stated by O’Brien and Laughlin, J J., that as the theory upon which the plaintiff could maintain the action was dependent upon whether an alteration in the contract was unintentional or deliberate, the plaintiff could not properly be required to furnish particulars until the defendant’s attitude had been defined. Where the information sought is peculiarly within the knowledge of the party seeking it, or he has as much knowledge on the subject as the other party, a bill of particulars will not be ordered. (Per Van Brunt, P. J., and McLaughlin, J.) It is not the office of a bill of particulars to inform the moving party in advance of the trial of the facts upon which his opponent relies. (Per Van Brunt, P. J. and McLaughlin, J.) Appeal by the plaintiff, the American Transfer Company, from 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 26th day of August, 1904, directing the plaintiff to serve a hill of particulars. William Howard, Jr., for the appellant. Herbert H. Maass, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: This action was brought to reform a written contract upon the ground that the same was entered into by a mistake on the part of the plaintiff and by a mistake or fraud on the part of the defendant. The defendant, in its answer, denied the material allegations of the complaint. After issue had been joined, defendant, upon an affidavit and the pleadings, moved for an order directing the plaintiff to furnish a bill of particulars setting out in detail the facts constituting the alleged mistake or fraud. The motion was denied as to the alleged mistake, but granted as to the alleged fraud, and the plaintiff appeals. If the defendant procured the execution of the contract by fraud it knows that fact just as well as the plaintiff does. The general rule is that where the information sought is peculiarly within the knowledge of the party seeking it, or he has as much knowledge on that subject as the other party, then a bill of particulars will not be ordered. (Fink v. Jetter, 38 Hun, 163; Isaac v. Wilisch, 69 id. 339; Moody v. Belden, 60 id. 582; Barone v. O'Leary, 44 App. Div. 418.) If the defendant has been guilty of a fraud it does not need, in order to properly defend the action, to be informed in advance of the trial, what information the plaintiff has on that subject. It is not the office of a bill of particulars to inform an adversary, in advance of the trial, upon what his opponent relies. (Higenbotam v. Green, 25 Hun, 214.) This is what the defendant evidently desired, and if the order appealed from is affirmed, will be permitted to obtain. The defendant has as much or more knowledge than the plaintiff has as to the fraud alleged in the complaint, and it is not entitled to be informed in advance of the trial what the plaintiff can prove on that subject. The order in so far as appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Yah Brunt, P. J., concurred; Patterson, J., concurred in result. [CONCURRENCE — O’Brien, J. (concurring):] O’Brien, J. (concurring): I concur in result. If the alteration in the contract was unintentional, then plaintiff can recover on the ground of mistake; if deliberately made, the plaintiff’s theory must be fraud. The plaintiff could not give the particulars until defendant’s attitude is defined. Laughlin, J., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.'