Opinion
May 5, 1915.
Curtiss, Keenan Tuthill [ William Nottingham and Theodore R. Tuthill of counsel], for the appellants.
Stanchfield, Lovell, Falck Sayles [ Halsey Sayles of counsel], for the respondent.
The complaint alleges a conspiracy by the defendants and Jonas M. Kilmer, now deceased, to deprive the plaintiff's paper of patronage and business and to confer the same upon the defendants' paper, the Binghamton Press. In paragraphs of the complaint numbered from twenty to thirty-six plaintiff alleges various transactions from January, 1904, to October, 1910, between the defendants, their coconspirators, agents and servants, and the subscribers, advertisers, newsagents, newsboys, employees and others serving the defendants, by which it is alleged the plaintiff's business was destroyed to its damage of $500,000. The court granted a bill of particulars in many respects, otherwise denying it.
The defendants' alleged grievance is that as to each of the specifications it does not appear who did the wrongful act or upon whom the wrongful or improper influence was exerted, the court evidently having in mind that the object of a bill of particulars is not to disclose the names of witnesses. That proposition must be conceded to every reasonable extent, but when it is alleged that the defendants, their agents and servants, did certain acts, the defendants have the right to inquire the names of the alleged agents and servants who committed the acts, and when it is alleged that the defendants, their agents or servants, exerted an improper influence upon various subscribers, advertisers, employees, newsboys or newsagents, a bill of particulars may properly require the names of the persons upon whom such influence was exercised. The object of a bill of particulars is to make the pleadings reasonably certain and to prevent surprise upon the trial. If some employee of the defendants wrongfully induced a patron of the plaintiff to discontinue his patronage, the requirement that the name of the employee who exercised the improper influence, and the name of the person influenced, be stated, would not necessarily divulge the names of the witnesses by whom the plaintiff is to prove the fact. Where the complaint is entirely indefinite as to the persons exerting the wrongful influence, and also as to the persons influenced, particulars may properly be required. If the plaintiff cannot prove the allegation except by calling the persons named as witnesses, that fact is not an objection to the motion. The order as made should, therefore, be modified by requiring particulars as follows:
(1) Referring to paragraph 20 of the complaint, the names and residences of the persons who interviewed and induced the advertisers to withdraw their advertisements from the plaintiff's paper as alleged in the complaint, and the names and residences of the advertisers so interviewed and induced.
(2) Referring to subdivision 21 of the complaint, the names and residences of each advertising patron of the plaintiff who was prevailed upon, coerced and induced to discontinue the Evening Herald as alleged, and the name of each employee of the Binghamton Press who was instructed to refrain from patronizing those who advertised in the plaintiff's paper.
(3) Referring to paragraph 23 of the complaint, the names and residences of the new employees referred to.
(4) Referring to paragraph 25 of the complaint, the names and residences of the subscribers and patrons induced, as alleged, to discontinue their subscriptions.
(5) Referring to paragraph 29 of the complaint, the name and residence of each newsboy referred to and of each newsboy to whom a bonus was paid as alleged, and the amount thereof.
(6) Referring to paragraph 32 of the complaint, the names and residences of the plaintiff's employees who were by the defendants enticed or sought to be enticed from the plaintiff's service as alleged.
(7) Referring to paragraph 16 of the complaint, state when and how, and the person by whom Jonas M. Kilmer caused the plaintiff and said Beardsley to be notified as alleged.
(8) Referring to paragraph 17 of the complaint, the name and residence of the emissary or agent alleged to have been sent by Jonas M. Kilmer to said Beardsley.
(9) Referring to paragraph 22 of the complaint, the name and residence of each subscriber and patron interviewed and solicited as alleged, and the names and residences of persons to whom valuable prizes and inducements were offered, and what the said prizes and inducements were.
(11) Referring to paragraph 31 of the complaint, the names and residences of the agents and representatives of the defendants who induced the agents and employees of the common carriers to decline service to the plaintiff as alleged.
(12) Referring to paragraph 34 of the complaint, the name and residence of the person who offered a large sum of money to the news agency to refuse to serve plaintiff longer, and the name of such agency.
(13) Referring to paragraph 35 of the complaint, the names and residences of the persons who resorted to the unlawful and unfair means alleged.
And as so modified the order is affirmed, with costs to appellants to abide the event.
All concurred.
Order modified as per opinion, and as modified affirmed, with costs to appellants to abide event.