#### Benjamin B. Marco et al., Respondents, *v.*Clinton W. Bird, Appellant.

(City Court of New York, General Term,

August, 1898.)

Bill of particulars — Details of an alleged, shortage on many sales of coal.

Where the answer, interposed to an action for the price of coal, merely alleges that the plaintiffs falsely represented that the coal delivered was of full weight; that the defendant used it in that belief and “ that in the case of each load of coal there was a large shortage of weight,” a bill of particulars may properly be ordered, requiring the defendant to state the average in weight of the coal, when and where it was weighed, on what scales, the number of tons weighed, whether weighed separately, and the shortage on each quantity weighed. '

Appeal from a Special Term order requiring defendant to furnish a bill of particulars.

Wilmer *&*Canfield, for appellant.

Burr *&*De Lacy, for respondents.

Conlan, J.

This is an appeal from an order made at Special Term, requiring the defendant to furnish a bill of particulars stating *“*What was the average in weight of the coal alleged in paragraph 2 of the answer; when and where said coal was weighed, on what scales, and the number of tons as described weighed, and whether each ton was separately weighed, or in what quantity said coal was weighed and the shortage on each quantity weighed.”

The action was brought to recover a sum of money alleged as a balance due for the sale and delivery of a number of tons- of coal, which, it is claimed in the complaint, were so- delivered her tween December 1, 1897, and February 28, 1898. The dates of delivery are many in number, running almost daily through the months within the period named.

The particular allegations in the answer at which the application for the relief sought is aimed are as follows:

*378*“*Defendant further alleges that the plaintiffs falsely represented at the time of the delivery of the coal, that the coal delivered was of full weight, and thereby induced defendant to accept the same, and defendant in good faith, relying on such representations and believing them to be true, used the coal so delivered in ignorance of the fact that it was short weight, to the great injury and damage of the defendant, and that in the case' of each load of coal delivered there was a large shortage of weight.”

It is said in section 531 of the Code of Civil Procedure that a court may, in any case, direct a bill of particulars of the claim of either party, to be delivered to the other party, and bills of particulars have been ordered in actions for divorce, conspiracy, libel, slander,; fraud, negligence, alienating wife’s affections, and real property, as well as in the more ordinary actions for work, labor and services, and for goods sold and delivered.

The office of a bill of particulars is to apprise the party of the specific demand of his adversary, and not to furnish Mm with Ms proofs or the names of Ms witnesses.

It is perhaps, in its strictest sense, an amplification of the pleadings, as if the party had alleged generally that he had sustained damages in consequence of some.act or another, of Ms adversary, and without disclosing the nature of the act.

The granting or refusing of such an order rests very largely in the discretion of the justice presiding, and if that discretion is fairly and reasonably exercised, such exercise will not be disturbed.

■ The power of the court to order a bill of particulars extends, as we have seen, to all descriptions of actions, and notMng will be refused that will tend to advise the adverse party of the matters concermng wMch the pleading is evasive, indefinite or uncertain, if a failure to disclose any of the circumstances shall operate as an injury by way of surprise or injustice at the trial.

The claim of the defendant is that the coal purchased was short in weight, and the plaintiffs have the right to know if there be any ground for such an allegation, and, therefore, to be advised of the circumstances wMch are the elements of such an allegation.

How else is he to meet the evidence adduced on the trial?

It does not appear from the pleadings that any notice was given at the time of the delivery of the coal. On the contrary, the allegation is that the coal was used, relying on the correctness of the weights as furnished by the plaintiffs.

*379There is some evidence on the part of the defendant that on or about the 6th day of January, 1898, he notified the plaintiffs herein in writing of the amount of shortage in the coal delivered, and sent them his check in full payment for the coal actually delivered and which was refused; but the delivery of coal appears to have continued thereafter, and down to and including the 26th day of February following, and the same appears to have been received and used.by the defendant; in fact, he admits it.

In Dwight v. Germania Life Ins. Co., 84 N. Y. 493, and in Tilton v. Beecher, 59 id. 176, two well-known and well-considered cases, it was said that the word “ claim,” as used in the five hundred and thirty-first section. of the Code, included not merely a ground or cause of action upon which affirmative relief is asked, but also in case of a defendant, whatever is set up by him, based upon facts alleged as the reason why judgment should not be taken against him.

Wherever the pleader undertakes to surround his pleadings ' with matters of doubt, uncertainty or ambiguity, in such a manner as to hide or conceal the true intent of his allegations, the court will interfere by order, to compel him to remove the cloud, where it can be done, by more definite and certain allegations, and where this remedy is not applicable in all its force, then by a bill of particulars of his claim, so as to put the adverse party in possession of something that he may be prepared to meet his opponent upon the trial, on no uncertain or indefinite ground.

If the defendant relies upon his allegations, he must sustain them by clear proof, and, therefore, must have sufficient knowledge of the facts to advise the plaintiffs in relation thereto’.

We think the order of the Special Term was well within the reasonable exercise of discretion, and that the same should be affirmed.

Olcott and Schuchman, JJ., concur.

Order affirmed, with costs.