Opinion
January 9, 1907.
J.S. Frost [of counsel], for the appellant.
N.B. Spalding, for the respondents.
The counterclaim alleges deception, imposition and wrong dealing by plaintiff and his copartner for a period of nearly four years while acting in a fiduciary capacity for the defendants' intestate. These allegations are in the most general terms and convey very little, if any, information as to the precise facts constituting such malfeasance save the general statement thereof. Plaintiff in his reply and in the moving affidavit denies all knowledge concerning the same. His copartner, for whose misdeeds equally with his own he is sought to be held liable, is dead, and whatever information may have been possessed by the copartner is not available to plaintiff. Defendants do not plead their inability to furnish the desired particulars. In the absence of opposing affidavits it must be assumed that they can readily furnish the same. It may very well be that the instances of wrongdoing, if any, alleged in the counterclaim were committed by the deceased copartner of plaintiff without the knowledge of the latter, and the latter should be apprised in detail of the facts concerning the same which are within the defendants' knowledge. It would be manifestly unjust to require the plaintiff to go to trial on such sweeping and comprehensive charges of business obliquity and long-continued petrified integrity on the part of himself or his deceased copartner, without apprising him more fully of the nature of such charges. Justice and propriety require the defendants to comply with the plaintiff's demand for a bill of particulars. The particulars asked for amount to little more than a detailed description of the wrongful contracts which the defendants claim were made to the prejudice of their intestate. If those contracts were in writing and in defendants' possession plaintiff would clearly be entitled to copies thereof. Being oral it is equally proper that defendants should furnish detailed particulars concerning the same.
The order must be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.
All concurred; PARKER, P.J., not sitting.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.