Gas Works Construction Co. of Phila. v. Standard Gas Light Co. of N. Y, GAS WORKS CONSTRUCTION COMPANY OF SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, JANUARY, 1888. S$ 531, 544. Bill of particulars— When required—Supplemental answer— When defendant permitted to serve. Where in an action by the alleged owner of certain patents to set aside assignments of interests therein made by an agent in alleged contravention of the authority given to him, on the ground that the assignments so made were fraudulent and without consideration and were taken with notice of the plaintiff's rights, the answer of the defendants set up that the assignments were executed and delivered for a good and valuable consideration,-Held, that the court had power to order a bill of particulars containing particular statements of the consideration which the defendants generally averred, that they paid for such assignments; that to require such particulars was not to require the furnishing of evidence, but was simply to require the giving of information necessary to avoid surprise upon the trial and to afford the plaintiff an opportunity of meeting or explaining such defense. Watkowski . Paramore (93 N. Y., 467), followed. patents made by an agent of the plaintiff to one A., and by A. to M., and M. to the S. G. L. Co., on the ground that the agent was without authority to make such assignments, and that they were fraudulent and without consideration and taken by the several assignees with knowledge of the fact,-Held, that the defendants, S G. L. Co., and A. should be permitted to plead by a supplemental answer a reassignment by the S. G. L. Co. to A., of said interests, made after Gas Works Construction Co. of Phila. v. Standard Gas Light Co. of N.Y. the commencement of the action, and a subsequent reassignment by A. to M. thereof; that for the purpose of determining whether such supplemental answer should be served, it was not necessary to determine whether the assignments had the effect of exonerating the defendants, the S. G. L. Co. and A., from further liability; but it was sufficient that it appeared that they had a material bearing upon the final determination of the rights of the parties. By the Code of Civil Procedure, § 544, the courts are required to permit a supplemental answer to be served, alleging material facts which have occurred after the answer itself has been served. (Decided, January 23, 1888.) Appeal by the defendants Standard Gas Light Co.,Wallace C. Andrews and Joseph A Monheimer, from an order directing service of a bill of particulars of defense set up in their answers; also, appeal by the Standard Gas Light Co. and Wallace C. Andrews from an order denying motion for leave to serve a supplemental answer, also motions by plaintiff to dismiss said appeals. Sufficient facts are stated in the opinion. J. W. Hawes, for defendants, Andrews and Standard Gas Light Co., appellants. The order for a bill of particulars should be reversed. The only ground for asking a bill of particulars, is that the defendants allege that their assignments were executed for a valuable consideration, and that the assignments themselves recite one dollar, or one dollar and other value. . . The pleading gives plaintiff all it has at present a right to know, to wit, that the defendants gave a valuable consideration. When it comes to trial, if it has a prima facie case, the defendants will have to prove their consideration, and then the plaintiff will have the right of cross-examination. That there was a valuable consideration is the only fact; all the rest is evidence of the fact. To give information of the proposition for which the pleader contends, is the office of a bill of particulars, not to disclose the evidence on which he relies to prove it. Gas Works Construction Co. of Phila. v. Standard Gas Light Co. of N. Y. Gee v. Chase Man. Co., 12 Hun, 630; Newell v. Butler, 38 Id., 104; Depewolf v. Hills, 53 N. Y. Super. Ct. (21 J. & S) 105; Higenbotam v. Greene, 25 Iun, 214; Stevens v. Webb, 4 N. Y. Civ. Pro. 64, 72; Ball v. Evening Post Co., 38 Пun, 11. The order refusing leave to serve supplemental answers should be reversed. The reassignments having been made since the former pleading, the defendants Andrews and Standard Gas Light Co. are entitled to set them up and have their benefit on the trial. Gratz Nathan, for defendant Monheimer, appellant. The order appealed from, so far as it directs the appellant Monheimer to serve a bill of particulars, was erroneous. The office of a bill of particulars is not to supply the evidence in an action, but only to apprise the opposite party of the particulars of a matter which might properly form a part of a pleading. It is charged in the thirteenth paragraph of the complaint, that all the assignments were made and accepted with an intention of perpetrating a fraud upon the plaintiff. . . If the plaintiff, without knowledge or information on the subject, has brought an adventurous suit, and seeks to ascertain the real facts of the case from the mouth of this defendant, his remedy is not by bill of particulars, but, if at all, by an examination of the defendant before trial. The assignments in question are not pleaded by the defendants, but are set forth in the complaint and annexed thereto in extenso. The defendant presents no counter-claim, or affirmative defense. The information which the plaintiff seeks is not in respect to any claim or defense made by the defendant, but in support of the plaintiff's own case. It is true that, in denying that the assignment by Sherman was fraudulent, this defendant states that it was made and accepted in good faith for a valuable consideration; but that form of denial does not constitute a claim of the defendant, upon which a bill of particulars can be required (Code Civ. Pro. § 531). Gas Works Construction Co. of Phila. v. Standard Gas Light Co. of N. Y. Delancy Nicoll and James B. Dill (Dill, Chandler & Seymour, attorneys), for plaintiff-respondent. The court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party. Code Civ. Pro. § 531. The plaintiff's demand was consistent with the record. The defendants held property of the value of $100,000 on recorded assignment expressing a consideration of $1. The plaintiff alleged that the consideration was nominal and these assignments were without actual consideration. The answers were not consistent with the record of title but alleged that the defendants each (except Sherman) paid and received full and valuable consideration. The court properly then ordered a bill of porticulars. An order directing a bill of particulars is not reviewable here, unless it clearly transcends the power of the court granting it as defined by the general course of practice. Downey v. Volkening, 37 N. Y. Super. (5 J. & S.) 313; Dwight v. Germania Life Ins. Co., 84 N. Y. 493; Witkowski v. Paramore, 93 Id. 467. When the answer pleads payment upon an affidavit stating that the plaintiff did not know what the payment was, the defendant should give a bill of particulars stating Barryman v. Taylor, 52 on what payment he relied. N. Y. Super. (20 J. & S.) 448. A case more nearly like the present one is the case of Witkowski v. Paramore, 93 N. Y. 467. In this case the plaintiff alleged that he was the equitable owner of a claim, which was assigned by the nominal owner to the defendants to be collected by them for the benefit of the plaintiff. The defendant set up that the claim was originally assigned to the defendant as collateral security for certain advances and for further valuable consideration. The court sustained an order requiring the defendant to furnish a bill of particulars in the minutest detail, as to what this valuable consideration consisted of. The order refusing defendants leave to supplement Gas Works Construction Co. of Phila. v. Standard Gas Light Co. of N. Y. their answer was right. The answer thus sought to be set up is entirely inconsistent with the previous answer, which absolutely and repeatedly justified the title of the defendant, the Standard Gas Light Company of the City of New York, denied the agency of the defendants, Sherman and Monheimer, and all knowledge of such agency, excluded the plaintiff from any right in the patent or equity in them, or right, as the answer says, to interfere with the exclusive possession and ownership of the same by the Standard Gas Light Company of New York. To set up the fact of these transfers in addition to the matters set up in the answer was to set up a defense inconsistent with the previous answer, created not by the act of any outside third parties, but created by the acts of the defendants themselves, which act the special term held was not in accordance with an honest intention to do justice. Defendants desiring to do justice would have put the property into the possession of the court pending the controversy to transfer the property, pending suit to determine title was a proceeding of doubtful character. The principle involved here is laid down by the supreme court, general term, third department, in the case of Dusty v. Lansing, where the court says as follows: "We think it is not necessary here to decide the question whether the proposed answer is a good defense. Our inquiry should rather be whether it is offered in good faith, and without laches." Dusty v. Lansing, 3 N. Y. St. Rep. 699; Cheeseman v. Stuges, 19 Abb. Pr. 203. The defendant will not be permitted to set up a tenchnical defense to defeat the just claim of the plaintiff. Holyoke v. Adams, 1 Hun, 223; Morel v. Garelly, 16 Abb. Pr. 269. For the same reason the court has refused to grant permission where it was shown that the defense, although strictly legal, was inequitable. Holyoke v. Adams, 59 N. Y. 233. And it would not be granted if false or contrary to justice, or fraudulent. 7 Taunt. 421. If the application was for leave to submit this defense in addition to the answer already |