The action was brought for the rescission of a contract, under which plaintiffs purchased stock of the defendant corporation from it, on the ground that the execution and performance of the contract by the plaintiffs were procured by the fraud of the defendants. Judgment is also demanded for $1,440,000, being the amount of money paid under the contract by the plaintiffs to the defendant corporation.
The 108th paragraph of the complaint alleges that promptly after discovering the fraud plaintiffs demanded a cancellation of the agreement and the return of the money paid thereon.
The portion of the order from which the appeal is taken requires the plaintiffs to set forth with respect to the demand, “ whether or not said demand was oral or written, (a) If oral, set forth in full the substance thereof, the date or dates on which made, the individual by whom it was made, and the names of the plaintiffs [doubtless meaning defendants] or their representatives to *702whom the said demand was made, (b) If written, attach a complete copy thereof to the bill, and set forth the date or dates on which made, the individual by whom it was made, and the names of the plaintiffs [defendants?] or their representatives, to whom said demand was made.”
The appellants contend that, in so far as it requires plaintiffs to give the aforesaid particulars with respect to the demand alleged in the complaint, it is erroneous within the recent decision of this court in the case of Wolff v. Hubert (200 App. Div. 124) in which this court, Mr. Justice Page writing, said: “In the 'fifth’ paragraph of the complaint is alleged the tender, request and refusal of the delivery of the stock. The court requires a statement of whether such tender and offer was written or oral; if in writing, annex a copy thereto; if oral, state the substance of what was said by each party herein on each of the dates mentioned in paragraph ‘ fifth.’ The italicised words should be stricken out. These provisions of the order call merely for the statement of plaintiff’s evidence, and were clearly improper.” (Italics by the court.)
We are of the opinion that, in so far as the order directs plaintiffs to set forth “ in full the substance ” of the oral demand, it calls upon the plaintiffs to disclose their evidence, to which the defendants are not entitled.
The order should be modified by denying the motion as to item “(a)” in paragraph “X” of the notice of motion so far as it demands a bill of particulars setting “ forth in full the substance ” of the demand therein referred to, if the same was oral; and as so modified affirmed, with ten dollars costs and disbursements to the appellants.
Clabke, P. J., Dowling, Smith and Page, JJ., concur.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellants.