
    William H. Kennedy, Respondent, v. Edouard T. Mostert, Appellant, Impleaded with Henry H. Stanwood.
    
      Bill of particulars—specifying the details in which a Lloyds insurance association was illegally constituted.
    
    Where the complaint in an action brought to rescind a contract, by which the plaintiff purchased of the defendant the charter of a Lloyds fire insurance association, alleges, in substantially the language of section 57 of the Insurance Law (Laws of 1893, chap. 690, as amd. by Laws of 1894, chap. 684), that the persons whose names were subscribed to the articles of the association “did not constitute individuals, a partnership or an association of underwriters, -» * which, on the first day of October, 1893, was lawfully engaged in the business of insurance within this State, and not required by law to report to the Superintendent of Insurance or the Insurance Department, or subject to their supervision or examination," the defendant is entitled to a bill of particulars, specifying the details wherein the association was not legally constituted to do an insurance business.
    Appeal by the defendant, Edouard T. Mostert, 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 26th day of December, 1899, denying his motion for a bill of particulars.
    
      H. B. Closson, for the appellant.
    
      Leopold Leo, for the respondent.
   O’Brien, J.:

The plaintiff purchased of the defendant Mostert the charter of the National Lloyds Eire Insurance Association for the sum of $5,000, of which amount he paid $3,000 in cash and $2,000 in promissory notes of $1,000 each, which notes not having been paid, were subsequently sued upon and judgments' obtained against the plaintiff. This action is brought to rescind the contract made upon the ground, substantially, that, being young and inexperienced, the plaintiff was overreached; and, among other things, he alleges that the persons whose names are subscribed to the articles of association of the National Lloyds turned over to him at the time of the sale “ did not constitute individuals, a partnership or an association of underwriters, * * * which, on the first day of October, 1892, was lawfully engaged in the business of insurance within this State, and not required by law to report to the Superintendent of Insurance, or the Insurance Department, or subject to their supervision or examination.”

In thus using substantially the language of the statute (Insurance Law, Laws of 1892, chap. 690, § 57, as amd. by Laws of 1894, chap. 684), the allegation in effect is that, for some reason not disclosed, the National Lloyds was not legally constituted to do-an insurance business.

The motion was made to compel the plaintiff to give the particulars in which the persons failed to comply with the statute. Under the allegation made, the plaintiff could prove that the association was illegal, either because some of the persons were not of legal age, or were incompetent to contract, or had been fraudulently induced to sign the articles, or because the articles of association themselves were defective, or for the reason that in some other way the individuals who signed the articles did not comply with the statute.

It will thus be seen that, without definite information as to the form of attack, the defendant could be easily surprised at the trial. The allegation here is analogous to one frequently made in actions to set aside assignments for the benefit of creditors — that the assignment was made with intent to hinder, delay and defraud. There being nothing more alleged, the practice has been, in such cases, to grant the defendant, upon motion, a bill of particulars. Here, without the information which the defendant seeks, he cannot know the plaintiff’s objections to the legality of the association or be prepared to meet them on the trial, and in justice to him the issue should be made more definite by requiring the particulars to be given. Nor will this necessarily compel the plaintiff to furnish his evidence, for it will be noticed that the allegation referred to must be regarded as a conclusion of law or a statement of fact resting upon other facts undisclosed, and these undisclosed facts the defendant is entitled to know in order that he may prepare for trial.

We think the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide the event.

Van Brunt, P. J\, Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.  