This action was brought for the specific performance of a contract for the sale of certain real estate, or for damages for a failure to perform-. The plaintiff alleged the contract, the payment of $800 on account of the same, and his readiness' to perform all of the •Conditions of such contract on the day and date for the transfer of title, but that the defendant was “ unable and, unwilling to make the conveyance of the said premises in accordance- with the said contract.” The defendant moved for a bill of particulars “ setting forth in detail the particulars in respect to which plaintiff claims that the defendant was- unable to convey the premises more fully , mentioned and described in the complaint herein,” etc. The plaintiff subsequently served a bill of particulars^ -pursuant to an order of
Subsequently the defendant moved for another or further bill of particulars, and from the order denying this motion he appeals to this court. There is nothing in the moving papers to show that the defendant has not all of the information which he seeks to have the plaintiff furnish, and as the title to the premises is a matter of public record it is within the reach of the defendant quite as well as of the plaintiff, and it is not the legitimate purpose of a bill of particulars to impose a needless burden upon the opposite party. The granting of an order for a bill of particulars is discretionary with the court; and where it appears that the facts are as fully within the knowledge of the party demanding as they can be on the part of the party from whom the demand is made, and that the real object of the bill of particulars is to limit the party furnishing the same to the exact allegations of such bill of particulars, this court will not interfere to control the discretion of the court below in denying the motion. (Ahrens v. Moadinger, 41 App. Div. 355, 356; Constable v. Hardenbergh, 76 Hun, 434, 438, 439; Spencer v. Fort Orange Paper Co., 74 App. Div 74.)
We think the original bill of particulars set forth the claim of the plaintiff, and that he was not called upon to disclose the names, of his witnesses or other matters of evidence. The office of a bill of particulars is to amplify a pleading and to inform the party with reasonable certainty of. the nature of the dairy made by his adversary in order to prevent surprise and to enable him to intelligently
The order appealed' from should be affirmed, with costs.
■ Hirschberg, P. J., Bartlett, J enes and Hooker, J J., concurred:
Order affirmed, with ten dollars costs and disbursements.