Passavant v. Cantor

Bill of particulars — when not required to he furnished. The complaint in this action, brought to set aside a general assignment, alleged that the defendant Isaac Sickle failed to deliver to his assignee, the defendant Herman Cantor, all the property owned by him, or in which he had an interest at the time of making the assignment, and that the defendant Isaac Sickle had fraudulently secured and reserved for his own benefit a large portion of the property that he then had. It further alleged that the said instrument, purporting to be a general assignment, was the culmination of a conspiracy on the part of the defendant Isaac Sickle to fraudulently obtain goods, wares and merchandise from his different creditors, including these plaintiffs, for the purpose of fraudulently disposing of the same. The defendant made an application for a bill of particulars which should contain, first, a detailed statement of the property which the defendant Sickle failed to deliver to his assignee, which he fraudulently secured and reserved for his benefit; also the dates of such reservations and the names of the persons with whom they were made; second, a detailed statement of the goods claimed to have been fraudulently obtained, from whom such goods were obtained, and what portion thereof was reserved by defendant Sickle for his own benefit. Held, that the application for the bill of particulars was properly denied. That were the plaintiffs compelled to state the persons with whom, and state when, and the manner in which, the defendant Sickle had fraudulently disposed of his property in a bill of particulars, they would, upon the trial, be confined to such proof, although they might be in a position, without being possessed of this knowledge, to establish a prima facia case by showing such a gross deficiency between the assets which the assignor turned over to the assignee, and the assets which, in ordinary business dealings, he would have had, at the time of his assignment, as to put the defendants to their proof.

Appeal from an order, made at the New York Special Term, denying a motion made by Herman Cantor for a bill of particulars. Tbis action was brought to set aside a general assignment made by Isaac Sickle to the above-named Herman Cantor for the benefit of the creditors of said Isaac Sickle. The assignment was attacked upon the ground that the assignor, prior to the delivery of the assignment made fraudulent reservations and secretions of a part of his property for his own benefit. An application was made to require the plaintiffs to furnish a bill of particulars, which is more particularly referred to in the following opinion delivered at Special Term, which was affirmed by the General Term upon the reasons therein given: O’Brien, J. The defendant assignee asked for a bill of particulars of certain matters relating to plaintiff’s cause of action, which alleges fraud by the assignor, invalidating an assignment for the benefit of creditors, as the basis of the action, and the particulars of the alleged fraud are required. This same motion was made before Mr. Justice Patterson, and was by him disposed ■of upon the ground that the moving papers were technically defective, and upon that ground the motion was denied, with leave to renew, so that upon new affidavits the motion is presented to me upon its merits. The paragraphs of the complaint, to which reference is made, are as follows: Thirteenth. That, as plaintiffs .are informed and believe, the said defendant Isaac Sickle failed to deliver to his assignee, the said defendant Herman Cantor, all the property owned by him or in which he had an interest at the time of making of the said assignment, reported to be a general assignment, and that the said defendant Isaac Sickle, ■as plaintiffs are informed and believe, has fraudulently secreted and reserved for his own benefit a large portion of the property that he then had, and executed the said instrum'ent with intent to hinder, delay and defraud his creditors, including these plaintiffs. Fourteenth. That, as plaintiffs are informed and believe, the said instrument, purporting to be a general assignment, is the culmination of a conspiracy on the part of the defendant Isaac Sickle to fraudulently obtain goods, wares and merchandise from his different ■creditors, including these plaintiffs, for the purpose of fraudulently disposing of the same, or a portion thereof, and with the further intention not to apply the proceeds of the said disposition to the payment of the claims of the said creditors, but to reserve the same for his own benefit, and after greatly reducing his assets by such fraudulent reservations and fraudulent secretions, to hinder and delay Ms said creditors by the making of the said instrument purporting to be a general assignment. The particulars asked for upon this motion are: First. A detailed statement of the property which the defendant Sickle failed to deliver to his assignee, which he fraudulently secreted and reserved for benefit; also, tbe dates of such reservations and tbe names of tbe persons with whom they were made. Second. A detailed statement of the goods claimed to have been fraudulently obtained, from whom such goods were obtained, and what portion thereof was. reserved by defendant Sickle for bis own benefit. Tbe assignor and assignee, tbe two defendants in this* action, are both parties to tbe conveyance wbicb is alleged to be fraudulent, and to that extent may be regarded as in privity with each other. They appear by tbe same attorneys, and upon tbe motion before Mr. Justice Patterson joined in tbe demand for a bill of particulars, wbicb, if granted on tbe assignee’s application, enures to tbe benefit of tbe assignor. There is nothing presented upon this motion as to tbe assignee’s knowledge or lack of knowledge as to tbe reservations. Tbe defendant Cantor has received tbe books and papers of tbe assignor, and has made up a schedule. As said by Judge Wallace in Wilson v. Pearson (13 Fed. Rep., 386): “ Tbe particularity with wbicb a party should be required to-inform bis adversary as to essential facts wbicb are in controversy,, depends upon tbe nature of tbe facts and tbe extent to which information may fairly be presumed to be within tbe cognizance of the respective parties. A party should never be required to make specifications of those matters wbicb from their inherent character are-not capable of exactitude, or wbicb constitute evidence rather than substantive facts, nor to proffer information which is presumably more within tbe knowledge of bis adversary than bis own.” There is no vagueness or uncertainty about tbe allegations of tbe complaint. Tbe fact stated being, first, a failure to pass over tbe entire property to tbe assignee, and a reservation with intent to defraud creditors; and, second, a scheme to defraud, including the acquisition of goods on credit, and tbe disposition of them for cash, and a reservation for the benefit of tbe assignor. In Wiegan v. De Jonge (18 Hun, 406), it is said that “ if the-information sought is in tbe possession of tbe party asking it, then it will be plain that tbe application is stimulated by some motive other than a desire for specific details; and if it appears, in addition, that tbe parties from whom further particulars are asked are not in a situation to answer tbe demand, and do not possess the-facts, then indeed is presented a plain case for a refusal of tbe order.” In Newell v. Butler (38 Hun, 104), it was said: “ The result of the numerous reported adjudications relating to the scope and nature of a bill of particulars is, that its only proper office is to give information of the specific proposition for which the pleader contends in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition.” I have not overlooked the cases of Claflin v. Smith (13 Abb. N. C., 206) and Gas- Works, etc., Company v. Standard Gas-Light Company (13 N. Y. State Rep., p. 339.) In the former case a bill of particulars was ordered. In that case, however, the motion was made by one set of creditors seeking to sustain the assignment against another set of creditors seeking to set it aside on the ground of fraud. The present case seems to me to be clearly distinguishable, for in Claflin v. Smith it was evident that the persons seeking the information did not know the facts, nor were they in a position to know, and as the learned justice there said: “ The plaintiffs may be ordered to deliver to them a statement in writing of the times and places at which the plaintiffs expect or intend to prove any acts or things which serve to show that the assignment named in the complaint was done with fraudulent intent as charged in the complaint, and particularly to what persons and at what times and places the plaintiffs will claim or offer to prove that the assignor, Clinton H. Smith, made secret or other assignments of his estate.” These applications are addressed wholly to the' discretion of the court. "Whether it shall be granted or not depends on the particular circumstances of each case. Conflict in the authorities is due to the lack of similarity between the cases presented for •decision. Upon a complaint, it appears to me that the effect of ■requiring the plaintiff to furnish a bill of particulars will not only be. to compel him to disclose much of his evidence, but would be a hardship. The complaint itself appears to me to satisfy the rules ■applicable to equity pleadings. A general certainty is sufficient in pleadings in equity, and though a mere general charge of fraud is insufficient, it is not to be understood that particular facts and circumstances, which confirm and assist, should be minutely charged. It is not necessary or proper that pleadings at law or in equity should be incumbered with all the matters of evidence the complainants may intend to introduce. (Wait on Fraud. Convey., § 142.) Were the plaintiffs compelled to state the persons with whom, and times when and the manner in which the defendant had fraudulently disposed. of his property, in a bill of particulars, they would, upon the trial, be confined to such proof, yet they might be in a position, without being possessed of this knowledge, to establish a prima facie case-by showing such a gross deficiency between the assets which the assignor turned over to the assignee and the assets which, under ordinary business dealings, he should have had at the time of his assignment, as to put the defendants to their proof. Considering the nature of the action itself and the relative positions of* the parties, and the fact that the knowledge in reference to the-statements of fraud, if they existed, are, by reason of the possession of the books and of the entire estate of the assignor, more within the possession of the assignee, this application is denied, without costs.