New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-12-30
JUDGE NELSON'S OPTION.

McCue's order.
JUDGE NELSON'S OPTION.
City Court Of BrOOklyn-Generdl Tcrm.-
TfeuSore Ti;on, plaintiff ana appellant, agt. Henry
Ward BeeEher, defendant and respondent.
This lie an arpea! rom order Of the SPECIAL Term
requiring the ain,if to furnish bin of particulars.
The application for the particulars made before
in the first instance. and was denied for want OF
power and the other grounds stated" The opinion
fled with that order did expressly put that denial of
one branch Of the application on the want Of power.
That confessions imputed TO and denied by the
defendant. II WIS shown thar the plaintiff had stated
IN Saper article that the defendant had confessed
compel tine plaintiff 70 state when and where those
pressed IN the Opinion as to the untcnabie character Of
that part Of the appcon and as 70 the want OF power
ant that claim has since heen abandoned.
The Court o. Appeals. JUDGES Allen and Grover tis.
senaG. order As Ia tie other claims 10 dis
cOvery the ground that the particulars had been
CcDI,d because OF supposed want Of power The clos
iL2 words O the order were not II seems wen chosen
the EXPRESSION for want OF power aud on the other
grounds stated having been taken TO refer not to
modes of treatment the one under restraint FOR want
Of authority and the other having regard to the merits
ciscd but TO one ana tlc same ground of rejrcton.
namely. TIE Of authority II appears. there
Of That diedvowai of authority; that the doctrine
OF the court Of last resort is that tie courts of first
particulars TO be furnished IN actions for
tors intending cases of ,h: Ghnraf sSt That
court dd not and could NOT, determine that the app-
cation which had been denied should granted
bat the discretion to be exercised by this
granting or refusing such apcation unframmeied and
uDt~ucucd Ii many Of enc cases cited IN the elaborate
opinion of JUDGE PABLO. the bill narration was 50
vague md general mat something supplemental was
ntc"sSa+f 10 cidtIe tAe dcehdant 70 know what 'he
real cuaza, ter OF Tue charg, was. When the par
lnG were fOrIisGed, that pleading and the par
tIeula,l confined. became as definite ana certain
Grirt Il 20 be when FIRST presented such cases DO not
therefore. touch the question whether the complaint
puI they cItra with view TO that question. but
supply 10 show that the court may, Us OCCASIONS arse,
If practice be conveniently and nsefully APP
Piled t. most actions Tor tOrt II Is Tot 70 BE- assumed
that be well applied 10 q this. The
nature Of the oepse, :he secrecy ana studied conceal
ment 1tieHdng preparation, constitute objection
good OF action exist for such wrong. 10
prov ed on,y by circdastantial evidence. and the
pIaIut.f De utterly unable 10 comply with order to
give particulars to time and place. 1t would we
appr lend. 80 IL nost Instances the cases III which
t6r particulars could be safely given being ate excep
t.Ona. Tie particulars, when furnished, perform
double oicc First To advise the defendaDti secondly,
10 limit the ;laintf II may oe SHIELD II uay 20
sword Before tHey ordered 10 should appear that
party c.n give the PARTICULARS, he held by them
hrm Gr"sp tc prescribed circle without materially
IN Us natLr admits OF general or reliable information.
thiuS en 4e Tue day the PARTICULARS may Is ordered
OF he uiect the act or oense and the circumstances
are known, or resolved, the order
should be -r4nod with great hesitation withheld
IL WAS therefore material TO consider whether the de-
PENDANT needed the information claimed and In this
form. BE by ath iavt that he had no knowledge
or snsuIcon A. 10 tue lines or places at which the
naind .yusc's 10 prove the case was entirely at a
ioss 10 form any surmiso concerning probable line
OF proof which may adopted by the plaintiff on the
tr,s Tat icing lie stood the attitude common 70
kuurs pressed by what they deem an artificial or un-
Just the field OF combat opened to him rs ~ mas
been TO hugants for generations. He will recognize the
fact learned counsel will accept the suggestion that
by AL interocutory order De put III
the position he will be- gwen the light ne Will nave,
Wnen on the plaintiffs proofs are In ana his
o. sc closed But still inquiry whether or not
within procedure the information can or
ehOuld be furnished II he did need that Information
when application was first made at Special Term.
does that want rest on him still learn rom the
and illustrations OF counsel speaking 10 tne
IN court on this ana former OCCASIONS AM Mo
tie aidavits and generally from tbe PIess las tnetS
had been examinations before committee tno psr un
present O witness that several statemenA nave
from time time been given 70 the public ID eacn tne
nainti seeking 70 make out his case and in his zeal
setting forth simplifying his proofs The details or
the case obtained large publicity In sdoi.
ton TO that befUre N the piaintTs smdavt
used Special Term In resisting the last nouon IN
winch he states has and what he has not
n not olherwIse obtained this AFFIDAVIT on Ole gives 70
defendant the desired information Jss Ine eonn