#### Philander H. Lewis, *v.*Florence Joiner, Impl’d.

*(Supreme Court, Special Term, Onondaga County,*

*Filed October,*1886.)

1. Bilí, of pabticulabs. — Code Civ. Peo. § 531.

The power of the court to order bills of particulars extends to all description of actions when justice demands that a party should be apprised of tlie matter for which he is put on trial with more particularity than is required by the rules of pleading, nor is the power confined to an exercise of it in behalf of the defendant in an action; the court may. order a bill of particulars to be given by the defendant.

2. Same — Paetitiox — Bill of paeticulaes bt a dependant.

Where in an action for the partition of real estate a party was made a defendant as being in possession of the property having entered under a deceased former owner, and by answer she claimed an estate in fee in the property, her title not appearing upon the record and the plaintiff having no knowledge or information as to the source of, or the manner in which the defendant acquired, or claimed to have acquired title of the premises, the defendant was ordered to give a bill of particulars.

Action by tbe heirs-at-law of one Alexander Lewis, lately deceased, for the partition of certain real estate, of which, in the complaint, it is alleged he died, seized and possessed.

The defendant, Florence Joiner, is made defendant, not as an heir-at-law, or the owner of the premises or any part thereof, but simply as party in possession, having entered under the deceased in his lifetime.

The defendant, in her answer, sets up by general averment, that she and one Eardly S. Lewis were, and are the owners in fee simple of the lands described in the complaint, and at the time of the commencement of the action they were in the quiet and peaceable possession, claiming title adverse to the plaintiff and the remaining defendants.

That said Florence Joiner also avers that at the time of the commencement of the action, she was and still is the owner in fee and in possession of seventy-five acres of the land described in the complaint, particularly describing the same.

Upon an affidavit showing that by the records in the Tomp*302kins county clerk’s office, said lands being situate in that county, it appears that the legal title to all said lands and premises was in the decedent at the time of his death, and that the plaintiff has no knowledge or information as to the source of or the manner in which the defendant acquired or claims to have acquired title to any part of said premises, and that the heirs-at-law are unable by reason thereof to prepare for the trial of the action upon this issue, the plaintiff asks for an order requiring the said defendant to serve on his attorney a bill of particulars of such title.

*Almy $ Bouton,*for *plaintiff; B. II*Buell, for defendant.

Kennedy, J.

By section 531 of the Code of Civil Procedure the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.

This provision is an affirmance of a rule of practice long settled, to the effect, that when it- was made to appear to the court that by reason of a want of knowledge sufficient to enable a party to prepare for the trial of an issue tendered by his adversary in the pleading, it would order a sufficient statement of the claim so made to obviate the difficulty, and thus save the contestant from surprise on the trial or because of that, to prevent the necessity of a new trial. Thus, in case of *Saunders*v. *Duke of*Newcastle, 7 Durnford & East, *382;*in an action of ejectment, on the application of the defendant the court made an order that the plaintiff should specify the particulars of the claim of title made by him within four days, and the defendant within four days thereafter should specify the particulars for which he defended. In *Dwight*v. *Germania Life Insurance Company,*84 N. Y., 502, the court say, “ Unless changed by the statute law the power of the supreme court to order bills of particulars is not confined to action upon demands for money made up of different items. It extends to all description of actions when justice demands that a party should be apprised of the matter for which he is to be put upon trial with more particularity than is required by the rules of pleading, citing *Tilton*v. *Beecher,*59 N. Y., 176. Nor is this power confined to an exercise of it in behalf of the defendant in an action, in favor of the plaintiff as well the court may order the defendant to give the particulars of the facts which he expects to prove,” citing many cases for different causes of action and defenses where the rule has been applied.

In the case in hand the action is brought by the heirs-at-law, resting their rights upon the documentary evidence which the records of the proper county furnishes, showing the title in the decedent at the time of his death. Beyond the evidence thus furnished, it cannot be supposed that they are in possession of facts resting in parol or unrecorded papers in the custody of *303tbeir adversary; and upon tbe trial, in ignorance of the defendant’s source of title, the plaintiff cannot be assumed as prepared to meet the evidence tending to show title out of the decedent. If this title rests in parol, the plaintiff being unapprised of the ground, must of necessity go to trial unprepared to meet it; if meet it he can, if upon unrecorded deed or writing he will be equally wanting in preparation, and after the defendant’s case has been disclosed in order that justice may be done, the court would be obliged on the plaintiff’s application to suspend the trial by the withdrawal of a juror or in some other manner to enable him to properly defend his rights.

No good reason can be assigned why the defendant should not be required to disclose her case before the trial to an extent sufficient to enable the plaintiff to prepare ; thus placing him exactly where he would after such disclosure upon the trial.

The rights of the plaintiff therefore demand that the information sought by this motion should be furnished by the defendant.

The order hereto attached will be entered.