[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 495
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 496
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 497 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 500 These appeals, from orders directing the defendants to furnish bills of particulars of the matters alleged as defenses, bring up two questions. First. Is there power in the Supreme Court to grant such an order in such a case, and is such an order, therefore, discretionary with that court, and prima facie not reviewable here? Second. If that question be answered in the affirmative, are these orders an abuse of the discretion of the court, so as to make them the subject of review by this court?
First. Unless changed by statute law, the power of the Supreme Court to order bills of particulars is not confined to actions upon demands for money, made up of various items. It extends to all descriptions of actions, when justice demands that a party should be apprised of the matter for which he is to be put for trial, with more particularity than is required by the rules of pleading. (Tilton v. Beecher, 59 N.Y. 176.) Nor is this power confined to an exercise of it in behalf of the defendant in an action. In favor of the plaintiff, as well, the court may order the defendant to give the particulars of the facts which he expects to prove. Thus, on a plea of fraud and consequent repudiation by the defendant, he has been compelled to give particulars of the acts of fraud and repudiation (McCreight v.Stevens, 1 H. C. 454; Pitts v. Chambers, 1 F. F. 684); on a plea of undue influence, particulars of those exerting the influence (West v. West, 4 S. T. 22; Jackson v. Hillas, 4 Irish [Eq.], 60); on a plea of justification to an action for a libel charging perjury, particulars of the matters of justification (Jones v. Bewicke, L.R., 5 C.P. 32); in ejectment (Doe v. Newcastle, 7 T.R. 332, note). The power has been exercised, even in a criminal case, in favor of the Commonwealth, and against the prisoner. See Com. v. Snelling (15 Pick. 321), where, on an indictment for libel, the defendant was ordered to give particulars of the instances of *Page 503 misconduct in the person libeled that he expected to prove, and was confined in his proof, on the trial, to the instances definitely specified in the bill furnished. In that case are citations of civil actions in which the defendant was required to give particulars of what he would attempt to prove. It is a power incident to the general authority of the court in the administration of justice. (Id.) It is the same power, in kind, that courts have to grant a new trial on the ground of surprise. The latter is remedial and curative. The former is preventative. But both have the same purpose, to reach exact justice between the parties, by learning just what is the truth, and to learn what is the truth, by giving to each party all reasonable opportunity to produce his own proofs, and to meet and sift those of his adversary. Thus, where, in an action for seduction, the female had sworn to the coition on a particular day, affidavits, showing an alibi and surprise, were held to make good ground for a new trial. (Sargent v. ____, 5 Cow. 106.) Now, would the plaintiff there have been in a worse plight if, before the trial, the court had ordered him to give a bill of the particular occasions on which he expected to prove copulation? The same end was reached by granting a new trial as could have been by ordering the particulars. And the same rule would apply, in the case of a plaintiff seeking a new trial against a defendant, for surprise by the testimony of the latter. But it is said that though the power may once have been in the courts, by reason of recent statutory provisions, it is not there now. The 531st section of the new Code touches this subject. It is claimed that by it the power is taken away, if the courts ever had it. That section provides that the court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party. If it should be conceded that there is no power left in the court other than that which this section gives, still we do not assent to the claim made. The strength of the defendants' position is, in the definition they give to the word "claim," found in the section. It is contended that the word is synonymous with "demand," and "cause of action," and that it was intended to express by it only the ground, or cause of *Page 504 action, on which some affirmative relief is asked of the court, and in cases only in which affirmative relief is asked.
We do not think that it is so restricted in purpose as that. In our view the claim spoken of by that section, where the case of a defendant is in hand, is whatever is set up by him as a reason why the action may not be maintained against him. The claim of the defendant, is that ground of fact which he alleges in his answer as the reason why judgment should not go against him. His claim, in the case, is the position he takes in his pleading, based upon the facts he sets up, and the law applied thereto, why he should go without day. We have used the word, in some of its forms, twice in this paragraph as expressive of a meaning as broad as that, and no doubt have been understood. There is no reason for saying that the intention of the legislature was to use the word with a narrower meaning. When section 531 was passed, the draughtsmen of the new Code had before them the case of Tilton v. Beecher (supra), and the cases cited in it. That case had been decided under the old Code, and with section 158 of that Code in mind. That section does not differ, in substance, from section 531 of the new Code. The framers of section 531 knew the power that the courts had to order bills of particulars, as shown by the opinion and judgment in that case. If it was meant by them to take away or narrow that power, there would have been some expression of an intention so to do. We find no indication, either in the section itself, or in any annotation on the section, that there was such purpose. The general purpose of the Code was, or should have been, to embody, in apt words, a declaration of the law as it was. If the purpose of any section was more than that, and was to change the law as it was, and to take away judicial power then possessed, we should find some hint of it in the section, or in reports accompanying it, or in annotation upon it. Besides, section 4 does continue, in the courts, the exercise of the jurisdiction and powers then vested in them by law, according to the course and practice of the courts, except as otherwise prescribed. Section 531 is not, in terms, prohibitory of the *Page 505 power, and may not be said to prescribe otherwise. Nor is there warrant for the contention, that the Code withholds power, unless the defendant seeks affirmative relief. That would be to make the power depend upon an incident merely. Suppose that the defendant, in any case, should, in his answer, ask judgment for a perpetual injunction on the same facts which he set up as a defense. This would be invoking affirmative relief. That alone would not bring the case within section 531, and give power to the courts. The existence of the power is not got from the prayer of the answer, but is inherent in the court, or recognized and preserved by the Code, or both. It would not keep in view the real purpose of ordering particulars, and the real purpose of the existence and exercise of the power, to hold that in such case particulars could be ordered, while, if the defendant waived or struck out his prayer for an injunction, it could not.
That purpose, as we have seen, is to reach justice between the parties by evolving the truth from their discordant statements, and to give the parties every reasonable facility for coming to the trial, fully prepared for all that may be produced by the other side. This is just as important, whether the matter is set up as a bare defense, or as a basis for a demand for affirmative relief.
The orders in these cases provide that the defendants be precluded from giving evidence on the trial, of matter not specified in the bill of particulars furnished. It is urged that the Special Term had no power to affix this penalty to a failure or an inability to furnish a complete bill. The contention is based upon the reading of the 531st section. The first clause of that provides that on demand a copy of the account pleaded must be furnished. The second clause provides that a failure to do so will preclude from giving evidence of the account. The third clause provides for an order by the court to furnish a further account when the first one is defective. The fourth clause is the one we have already stated, that the court may, in any case, direct a bill of the particulars of the claim of either party to be delivered. Now because the section *Page 506 does not anywhere but in the second clause speak of a penalty on non-delivery of a bill of particulars, it is argued that the Code meant that the courts should have no power to affix one. Clearly, the courts have power, by the Code, to grant an order for a further account, and for a bill of the particulars of the claim of either party. If the Code keeps from the court the power to affix a penalty to failure to obey its order, it is only by not repeating the clause giving the penalty. That would be to give more force to a demand of a party for an account, than to the order of the court for a further account. This would be absurd. There should follow the same penalty for not furnishing a further account when ordered, as there does for not giving a first account when demanded. There is power in the court to order that it shall follow. And if there is that power in making an order for a further account under the third clause, there is the same power in making an order for the particulars of a claim under the fourth clause.
The Code did not mean to take away the power, which courts always have had, of affixing a disability to disobedience of such orders. It was needed that it should enact the penalty for failure to comply with a demand of a party, but it was not needed that it should in terms give a power that the courts had always possessed. Besides, the bill of particulars is in aid of the pleading; it is sometimes called an amplification of the pleading. The particulars are considered as incorporated with the pleading (Fleurot v. Durand, 14 Johns. 329; Van Vechten v.Hopkins, 5 id. 211), and on production of the order and proof of the delivery of the bill, the parties are not allowed to give evidence out of it. (Holland v. Hopkins, 2 B. P. 243;Hurst v. Watkis, 1 Camp. 69.) It is an exercise of the same power, to preclude in the order proof of matter not specified in the bill of particulars. It matters not whether the power is exerted by a declaration in the order, or by a ruling from the bench on the trial.
There are arguments ab inconvenienti made against the existence of the power. These are drawn from the alleged difficulty of preparing a complete bill of particulars in the short *Page 507 time allowed a defendant to answer, and thereafter to comply with an order; and from the difficulty of making an exact and comprehensive bill of particulars before full and precise preparation for trial and for proof of the defense has been made. These difficulties must attend in greater or less degree any case in which a defendant can be ordered by the court to furnish a bill. As it is shown that there are cases in which the court has power to make an order upon the defendant to give particulars, it follows that these are not legitimate arguments against the existence of power to order, but rather for the favor of the court as to the terms and conditions of the order.
It is also urged that the allegations of the plaintiffs' affidavits are not sufficient to set the courts in motion. We think that the papers before the Special Term were enough to authorize the courts below to entertain the motions. It is said that the plaintiffs state no more in those affidavits than that they do not know to what instances the averment of the defendants' pleadings refer, while they do not state that they do not know of some instances of the same kind with those averred. But grant that the plaintiffs know of instances; they may be fully prepared to show that they are innocuous to their right of action. The instances which they know of may or may not be the same of which the defendant has knowledge or information; hence it is for the court to say in its discretion whether they should be informed. Therefore, the affidavits, in averring an ignorance of the one class, while not averring an ignorance of any, do make a case for the discretion of the court. (See Snelling v.Chennells, 5 Dowl. 80; S.C., 12 Leg. Obs. 75.) The position of the defendant is, that as it may be assumed that the plaintiffs have knowledge of some instances, it may be further assumed that they must be the same of which the defendant has information; or upon another assumption, that the instances do, in fact, exist, and that, therefore, the plaintiff cannot be ignorant of them. It is plain that the first assumption is not of necessity correct. The second is to assume the truth of the very issue to be tried, as it is raised by the verified pleadings of the parties, which were parts of *Page 508 the moving papers. We conclude, then, that the courts below had power to make orders that the defendants furnish statements of the particulars, and that the granting of them rested in the discretion of those courts.
Second. It remains, then, to inquire whether that discretion has been abused. Taking the cases and the orders in their general aspect, it cannot be said that it has. The defenses set up and the manner of pleading them are such, that manifestly the plaintiffs would go down to trial at some hazard of being taken by surprise, if there were not given to them some more specific statements than the answers open, of the time and place and other circumstances of the occurrences alleged in most general terms. It was a discreet exercise of power to order that more specific statements be given.
But objections are made to the terms and conditions of these orders, as directing either impossibilities, or acts that will be highly detrimental to the defense of the defendants. The orders direct that the bills state the particular times and places at which the deceased had bronchitis and spitting of blood. If this was to be so construed as requiring a statement of the very day or days, and the very houses of abode or buildings of business, on and at which he had the disease or raised the blood, there would be force in the complaint that it is impossible. It is not to be so construed. The times, in a true construction of the order, are the spaces of time, and the places are the municipal localities. Surely if the defendants have been informed so as to aver, and verify the averment, that Dwight had bronchitis and spit blood, they must have information specific enough to comply with such a requirement. Nor would a statement thereof imperil a defense beyond a peril to which it should be exposed, that of having the testimony to sustain it, met by countervailing testimony covering the same space of time and as to the same localities. It surely is not more hazardous than to have met the new trial granted on the ground of surprise in 5 Cow. (supra). To state the other insurances upon the life of Dwight, or the other applications for insurance, is easy if they are known or information has been had of them; *Page 509 and we see no likelihood of unreasonable hazard to the defense by doing it. Nor do we see that the order calls for a disclosure of the evidence on which the defendants rely to support their defense. A statement would not disclose whether the evidence would be oral or written, nor who would give the oral testimony, nor the nature or source of that in writing. And these remarks apply mutatis mutandis to the other matters contained in the various orders. And it is always to be borne in mind, that these orders are to be read and used, and action under them is to be had, in accordance with settled rules of practice, which are safeguards to parties on either side. In the words of Lord MANSFIELD: "The bill of particulars must not be made the instrument of injustice, which it is intended to prevent." (Millwood v. Walter, 2 Taunt. 224. See, also, Hurst v.Watkis, 1 Camp. 69, note; Lovelock v. Cheveley, 1 Holt's N.P. 552.)
We are not required to say, and we do not say, that in the exercise of discretion we would have granted orders as minute in some points as are the orders in these cases. If they are likely to be oppressive upon the defendants, application for relief will doubtless be considerately met by the Special Term. The purpose of the court below is to secure a fair and well-advised trial of an important and substantial controversy, after due preparation for what will be shown on either side; and the ear of the court will be open to any reasons that will convince it that further action is called for to that end.
These considerations bring us to the conclusion that the appeals in these cases should be dismissed.
All concur, except FINCH, J., taking no part, and RAPALLO, J., absent.
In the cases against The Manhattan Life Insurance Company, DANFORTH, J., took no part.
Appeals dismissed. *Page 510