#### Chartered Bank of India, Australia and China, Appellant, *v.*Nassau Fire Insurance Company, Respondent.

First Department,

June 2, 1911.

Practice — Mil of particulars — compelling compliance — relieving party from order — insurance.

Upon a motion to compel plaintiff to comply with an order directing it to furnish a hill of particulars, the Special Term has power to relieve it from compliance with the order if it appear that it is impossible for it to give the particulars required, and that if compliance with the order were enforced it would he compelled to abandon a large portion of the cause of action.

Plaintiff, the mortgagee of a stock of goods which had been lost and destroyed by reason of fire, sued to recover on a policy of insurance payable to it as its interest might appear, and on an assignment- by the mortgagor of its interest under the policy. Defendant moved for a bill of particular^, and plaintiff was ordered to give an itemized statement of the goods lost, and to state wMch had been destroyed, wMch damaged . and which stolen. Plaintiff served an itemized statement of the goods lost, and alleged that it was unable to state wMch of the articles had been lost, which destroyed and which stolen. Defendant accepted the bill, and then moved that the plaintiff be compelled to give a further bill in compliance with the order so as to show what had happened to each article, or be precluded from giving evidence on the trial. On the hearing of the motion it appeared that the fire had consumed an entire city block, and that citizens had endeavored to save what property they could by carrying it out of .the burning buildings and keeping it in the street .so that it was impossible to discover what had been stolen and what burned. It further appeared that at the time of the fire the only representative of the mortgagor in the city was One E., a bookkeeper. These facts had not appeared on the original motion for a bill of particulars.

*Reid,*that plaintiff should be relieved from giving particulars as to which of the goods were destroyed, wMch damaged and wMch stolen on condition that E. be examined by defendant before trial, and that *308upon such, examination plaintiff should furnish defendant with all the information in its possession regarding the conditions existing during • the fire and immediately thereafter before the damaged goods were stored. .

Latj&hliu and Clarke, JJ., dissented, with memorandum.

Appeal by the plaintiff, Chartered Bant of India, Australia and China, from an.order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of March, 1911, directing the service of a further hill of particulars.

*George A. Strong,*for the appellant.

*O. A. Levy,*for the respondent.

Ingraham, P. J.:

This action was brought to recover upon a policy of fire insurance whereby the defendant insured the Bhumgara Company on stock, materials and supplies situated in Lenox, Mass., “loss, if any, payable to Chartered Bank of India, Australia and China, as interest may appéar. ” On the 11th of April, 1909, when this policy was in full force and effect, a fire occurred by reason of which it is claimed the property therein described was damaged $1,500. or more, and proof of loss was furnished by the Bhumgara Company. Subsequently the Bhumgara Company assigned any interest it had in the policy to .the plaintiff and this action was brought to recover on the policy.

Subsequently a motion was fnade for a bill of particulars of the plaintiff’s claim, and an order was entered on the 15th of December, 1910, requiring the plaintiff to serve a bill of particulars stating the actual value at the time of the fire, of each item or article, which of the said items or articles were destroyed, which of the said items were damaged, which of the said items were lost, which of said items were stolen. In pursu-anee of that order the plaintiff served a bill of particulars of the specific items of property claimed to have been covered by the policy of insurance and claimed to have been by means of the fire on April 11, 1909,, destroyed, lost or stolen, together with the exact amount claimed on each and the actual value at the time of the fire of each item or article. And then follows a long list *309of articles of personal property with- the actual Value and amount claimed, followed by this statement: “Plaintiff is utterly unable to state. which of the foregoing articles were lost, which were destroyed, or which were stolen.” This bill of particulars was retained by the defendant, who subsequently and on January 30, 1911, made a motion for an order directing the plaintiff to comply with the order of the court by the service of a bill of particulars or further bill of particulars in the respects pointed out in the affidavit annexed, or in default of furnishing such an additional bill of particulars that the plaintiff be precluded from giving any evidence upon' the trial as to the items contained in the bill of particulars, or that the complaint be stricken out and granting to the defendant such other and further relief.

There is nothing in the papers submitted on behalf of the defendant to show that the plaintiff can give these particulars. The loss was payable to the plaintiff as mortgagee and prior to the fire it had no connection with this particular stock of merchandise, had never been in charge of it, and its officers had no actual knowledge of what was actually contained in the building. At the time of the fire the only representative of the Bhumgara Company at Lenox was a Miss Eddy, who was a bookkeeper for that company,, and who was to be examined under a stipulation of the parties before trial. It further appears that this fire occurred on the night of Saturday, April 10, 1909; that it destroyed an entire block in the town of Lenox, in one store of which the goods in controversy were kept; that .there was much excitement and a great crowd in the street attracted by the fire; that people in the street assisted in saving a portion of these goods by carrying them across the street and throwing them in a heap on the ground, where they were left until the following Monday morning, when what remained of them was moved to a place of storage; that the only information the plaintiff had was what it had been able to obtain from this Miss Eddy, and that it was utterly impossible for the plaintiff to ascertain which of the goods were actually destroyed by the fire and which were lost or stolen in consequence of the occurrence happening at the time in the endeavor to save what goods were possible. Nothing appears to question the good *310faith of the plaintiff or to show that it had any knowledge or means of ascertaining just what goods were, actually burned or what goods were lost or. destroyed in removing them from the store in which they were located. It appears that the vice-president of the Bhumgara Company did examine the stock about two months after the fire.' At that time the goods were actually stored and so far as appears no loss occurred after that time. These facts did not fully appear in opposition to the original motion for a bill of particulars, and I am satisfied from this record that the plaintiff did its utmost to comply with the order and furnished all the particulars it was possible for it to furnish.

The question was, then before the court as to the ‘extent to which the order originally granted should be enforced or whether the bill of particulars was a substantial compliance with the order in so far as it was possible for the plaintiff to comply with it. The answer to this motion is in substance á request to the Special Term to be relieved from separating the goods which have been lost into the three classes — those destroyed, those lost and those stolen. I think it cannot be disputed but What the Special Term has power to relieve á party from compliance with an order for a bill of particulars with which it is impossible to comply, and which if - the compliance is enforced would result in the plaintiff being compelled to abandon its cause of action or a large portion of it. Certainly it is not the object in requiring a bill of particulars to require what is impossible or what it will not be necessary for the plaintiff to prove upon the trial. By the examination of Miss Eddy the defendant will acquire all the knowledge of the condition of these goods after the fire that the plaintiff has or will have, but I do not' understand that the measure of defendant’s liability will be based upon the goods that were actually in the building when it was destroyed as distinguished from those which were-lost or stolen in the effort to save the property in the building. I think, upon a motion for a further bill of particulars, or to compel a party to comply with an order for a bill of particulars already made, the court has power to excuse a party required to furnish the particulars from furnishing such particulars as it substantially appeared it was impossible to furnish, especially *311where the result would be that as the order could not he com plied with the plaintiff would be compelled to lose a large portion of its claims.

I tbinh, therefore, that on the facts as they appeared, the Special Term should have relieved the plaintiff from furnishing further particulars on condition that the examination of Miss Eddy before trial should be had and upon that examination the plaintiff should furnish to the defendant all the information in its possession in relation to the conditions existing during the fire and immediately thereafter before the goods were stored.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with leave, however, to the defendant to renew its motion for. a further bill of particulars if from the subsequent examination of Miss Eddy it should appear that plaintiff had any further information upon the subject.

McLaughlin and Scott, JJ., concurred; Laughlin and Clarke, JJ., dissented. .

Laughlin, J.

(dissenting):

I dissent upon the ground that plaintiff should have moved for a reargument of the motion which resulted in granting the specific order, or should have appealed from the order, and that it is not competent for another Special Term, on the same facts, to relieve it from any part of the order: •

Clarke, J.,

concurred.

Order reversed, with ten dollars costs and disbursements,- and motion denied, with leave to defendant to renew motion if from subsequent examination of -Miss Eddy it should appear that plaintiff had further information. Order to be settled on noticé.