#### Etta F. Herrington, Plaintiff, *v.*Ida Akin Davitt and John W. Davitt, as Executors of the Last Will and Testament of Albert W. Davitt, Deceased. Defendants.

(Supreme Court, Albany Special Term,

November, 1912.)

Bill of particulars — action on note — pleading — Statute of Limitations.

Where the complaint, in an action on a promissory note made by defendants’ testator, alleges a subsequent promise of the maker to pay, and the defendants admit the making and delivery *200of the note but deny nonpayment and allege that plaintiff joined in a composition in bankruptcy against the maker which was completed, and also plead the maker’s discharge in bankruptcy and the Statute of Limitations as a defense, defendants’ motion for a bill of particulars of the details concerning the alleged promises by testator to and with plaintiff concerning the payment of said note, and if such promises were in writing that copies of such writings be given, and that the original note be deposited for inspection,. will be denied.

It seems that the motion was really one for the privilege of inspecting a paper rather than for a bill of particulars.

Motion by defendants for bill of particulars.

Holmes & Bryan (John B. Holmes, of counsel), for plaintiff.

Thos. O’Connor, for defendants.

Rudd, J.

This action is brought upon a promissory note alleged to have been made by defendants’ testator May 2, 1900. The action was commenced June 8, 1912.

The complaint contains an allegation evidently made for the purpose of avoiding the Statute of Limitations, which in substance is that the maker of the note subsequently to its making promised and agreed with the plaintiff that he would pay the note.

The defendants admit the making and delivery of the note but deny its nonpayment, and allege that plaintiff joined in a composition in bankruptcy proceedings against the maker of the note, which composition proceedings were completed, and the answer also sets up a discharge in bankruptcy and the Statute of Limitations.

The defendants here move for an order directing the plaintiff to furnish a bill of particulars with reference to the sixth allegation of the complaint above referred to; in substance asking that an order be made requiring a bill of particulars of the details concerning the alleged promises by the testator to and with the plaintiff concerning the payment of the note, and if such promises were in writing that copies of such writ*201ings be given, and that the original be deposited for inspection.

The application is made under section 531 of the Code of Civil Procedure, which reads: “ TJpon application in any case, the court, or a judge authorized to make an order in the action, may, upon notice, direct a bill of the particulars of the claim of either party to be delivered to the adverse party.”

The defendants contend that the sixth allegation of the complaint with reference to the alleged promises of testator to pay the note is in the nature of a claim on the part of the plaintiff, and that the defendants are entitled to a bill of particulars of such claim. In support thereof the defendants say that the cause of action would be barred by each of the three defenses set up — composition, discharge and Statute of Limitations.

The defendants say that the indefinite form in which the allegation is made in the complaint leaves the defendants uncertain as to whether the alleged promises were in writing or oral.

The answer to that suggestion seems to be that in order to be effective in sustaining the cause of action they must have been in writing, and that, therefore, the defendant should assume that they are in writing. The plaintiff will be unable to succeed if on the trial she does not produce a writing to the effect alleged.

If the promises are in writing then the defendants say they “ are entitled to see the paper and inspect it for the purpose of determining whether or not it is in the handwriting of their testator, or whether it is a forgery.”

Thus it seems that really the application is one for the privilege of inspecting a paper, rather than for a bill of particulars of a claim.

A bill of particulars is the proper remedy where the party seeks to be fully apprised of the particulars or circumstances of time and place of the matters set forth in his opponent’s pleadings.

It does not seem that it is the function of a bill of particulars to require the production of an instrument so that *202the same may be examined to ascertain whether in the opinion of the party making the examination it is genuine or otherwise, or to ascertain by its examination whether it is properly executed. Such matters are in the character of evidence.

The attention of the court is called by the defendants’ attorney to the case of Miller v. Miller, 144 App. Div. 153, as controlling on the motion here. The citation by defendants’ counsel of the syllabus of that case indicates that the defendants are correct. The syllabus says: that a party “ is entitled upon a motion for a bill of particulars to receive a copy of each of the instruments and a statement as to the actual consideration of each, where his moving affidavit shows that he never heard of the instruments, and knows nothing about them. The fact that an order has already been made allowing the executor an inspection of the notes and check, is no bar to his motion for a bill of particulars.”

In reading the opinion hy Mr. Justice Scott, it clearly appears that that was not the decision of the court as set forth in the syllabus.

Justice Scott says: “ It appeared upon the hearing of the motion that an order had already been made allowing the defendant an inspection of the notes and check, whence it was argued that it would be unnecessary to furnish defendant with copies thereof, and upon this ground, apparently, no particulars were ordered to be given respecting said notes and check. It is quite apparent that an inspection of the notes and check will furnish no information as to the real consideration supporting them. As between plaintiff and defendant the consideration may be inquired into, and the defendant is entitled to know what the plaintiff claims that the consideration really was. The purpose of the bill of particulars containing such information is not to furnish evidence for the defendant but to limit and define the scope of the controversy. * * *

*“ The order, in so far as it denied a hill of particulars of the consideration alleged to have been given for the notes and check, should he reversed*

In other words, the court did not order copies of the notes *203to be given when an inspection had already been had, but it did direct that a bill of particulars of the alleged consideration should be furnished, that is to say, that the items of the consideration should be furnished — just what a bill of particulars is intended to cover.

The case of Nickel v. Ayer, 141 App. Div. 576 is controlling on this motion.

Motion denied, with ten dollars costs.