#### SAMUEL CARDWELL, Jr., Respondent, *v.*ELLA A. CARDWELL, Appellant.

*Diowce on account of adultery*— specification *of time and place.*

Where, in an action for divorce on tlie ground of adultery, the complaint alleged that the defendant, from the 1st day of November, 1876, up to the time of the verification of this complaint, went to, visited, and at various houses or places of prostitution or assignation in the city of New York (which times and places plaintiff cannot particularize) committed adultery and had carnal connection with a person therein named, *held,*that the allegation should be rendered more definite and certain as to the place at which the adultery was committed.

Appeal from an order denying a motion for a bill of particulars, or that certain portions of the complaint should be stricken out as vague and insufficient.

*93The action was brought to procure a divorce' on the ground of adultery. After having alleged in the complaint that the plaintiff had committed adultery at certain specified places, between certain dates, with persons therein named it proceeded :

“ Tenth. And the plaintiff, upon information and belief, further shows to the court and alleges that the said defendant from the 1st day of November, 1876, up to the time of the verification of this complaint went to, visited and at various houses or places of prostitution or assignation in the city of New York (which times and places plaintiff cannot particularize, and exclusive of the times and places in this complaint particularly mentioned) committed adultery and had carnal connection with the said John Hinckley.”

*John*JBrimnemer, for the appellant.

*Samuel G.*Gourfmey, for the respondent.

Daniels, J.:

The action is for a divorce because of adultery and it has not been usual, in cases of this kind, to order a bill of particulars to be served. That cannot ordinarily be necessary in order to prevent surprise upon the trial, for the settled practice of the courts requires that the charges shall be accompanied with so much particularity of time and place as reasonably to inform the defendant of the criminal intercourse designed to be relied on as the basis of the action. That is essential for the support of the plaintiff’s case as well as the proper protection of the defendant against fictitious and unfounded charges of misconduct. And where it may be omitted and success on that account improperly secured, no reluctance on the part of courts of justice would be felt in setting aside the verdict for the purpose of obtaining a fair and intelligent trial. The defendant would not be allowed to be overreached by evidence given to support charges so indefinite, as to be incapable of being met and properly contested.

The fourth, fifth, sixth and seventh paragraphs of the complaint charge the defendant with criminal -misconduct with individuals, whose names are alleged and set forth, and the places are meiffioned where it is supposed to have been committed. The only uncertainty is as to time, and that is stated to have been *on*
      *94frequent occasions between different but not very distant dates. More precision in tbe designation of tbe dates is stated not to be within tbe ability of tbe plaintiff, and that is a sufficient reason for its omission. There can be no difficulty preventing tbe defendant from being prepared to meet these charges upon tbe trial. They are as pointed and precise as circumstances will allow, and sufficient within tbe rule maintained by tbe adjudicated cases. (*Wood*v. *Wood,*2 Paige, 108; *Tim*v. *Tim,*16 Abb. [N. S.], 39; *Mitchell*v. Mitchell, 61 N. Y., 398.)

Tbe charge contained in tbe tenth paragraph of tbe complaint is much more indefinite by reason of tbe omission of any specific place. Tbe individual has been named and tbe times between which tbe intercourse is stated to have occurred are set forth, but a statement of tbe places has been omitted. Tbe allegation on that subject is that it was at various bouses of prostitution or assignatio a in tbe city of New York. A charge so general even the most alert could not be expected to be prepared to meet with evidence. It comprehends too much space and too many suspected localities, and evidence under it could not fail to operate as a surprise upon tbe defendant. This should be rendered definite and certain as to tbe place intended to be referred to or it should be stricken from tbe complaint. Reasonable certainty as to these charges can only be secured by stating tbe place or places intended, and they can be given if tbe misconduct alleged has sufficient color of foundation to. render it a proper subject of legal investigation. As to this paragraph tbe complaint should be made more definite and certain by stating tbe places where tbe misconduct is supposed to have occurred; and tbe order should be so far modified as to require that to be done. Tbe former practice allowed tbe defect to be corrected by putting tbe issue to be submitted to tbe jury in definite form. (*Wood*v. *Wood, supra,*113.) But tbe provision of the Code, under which a reasonable degree of definiteness and certainty in pleadings can be secured by motion, renders it unnecessary for tbe defendant to resort to that alternative.

Tbe order should be so far modified as to require tbe plaintiff to amend tbe tenth paragraph of tbe complaint by stating tbe place or places where tbe misconduct is supposed to have taken place. And if that be omitted for twenty days after tbe service of a copy of tbe *95modified, order, then that entire paragraph should be stricken out of the complaint.

In all other respects the order should be affirmed without costs.

Davis, P. J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Order modified as directed in opinion, and affirmed as modified, without costs.