
    Elizabeth A. Wilks, Respondent, v. Rebecca Greacen and Robert A. Greacen, Appellants.
    First Department,
    June 28, 1907.
    .Bill of particulars in judgment creditor’s action denied.
    
      Although the answer in a judgment creditor’s action to set aside fraudulent transfers, after denying the allegations of the complaint, unnecessarily alleges that the defendant at the time of the transfer was the owner of property of a certain value over and above any indebtedness then owing, he will not be required to give a bill of particulars of the property then owned by him.
    Laughlin and McLaughlin, JJ., dissented, with opinion.
    Sepakate appeals by the defendant Bebecca. Greacen and by the defendant Bobert- A. Greacen from an order of the Supreme Court, made at the New York Special Terra and entered in the office of the clerk of the county of New York on the 3d day of May, 1907, directing that each of them serve a bill of particulars.
    
      Lyman A. Spalding, for the appellants.
    
      William West Shaw, for the respondent. ■
   Ingbaiiam, J.:

It seems to me that the rule that where the allegations of the answer are in effect a denial of a material allegation of the complaint it is not proper to require the defendants to give a bill of particulars, which would limit them as to their proof, applies to this case. The defendants should be at liberty to introduce any evi-. dence that they can to disprove the main facts upon which the plaintiff bases her right to relief. That the defendants unnecessarily .made a part of their denial of a material allegation of the complaint an affirmative allegation that they had property does not justify the court in requiring them to specify what property they had, and thus limit them in the proof with which they can meet the plaintiff’s allegation upon which her right "to relief depends. I think the case is controlled by Barreto v. Rothschild (93 App. Div. 211). .The principle is the same, and it should' be followed. It does' not follow, because the court has power to order a bill of par"ticulars, that in this case that power should be exercised. If the plaintiff desires evidence as .to the property of the defendants, she can .obtain such evidence by an examination o.f tlie defendants before trial; but evidence to prove or disprove her allegation should not be sought by a bill of particulars.

" I think the order appealed from should be reversed, with ten dollars costs and. disbursements, and the motion denied, with ten dollars costs. ’ .• ■

Clarke and Scott, JJ., concurred .; Lafghlin and McLafghlin,. JJ\, dissented. ...

Lafghlin, J". (dissenting):

This action is brought by .a judgment creditor of the defendant Robert A. Greacen to set aside transfers of property by him to the defendant Rebecca Greacen, his wife, upon the ground that the same were made, in fraud of the rights of creditors.

The plaintiff alleges that the transfers, which she- seeks to set aside as fraudulent, left. the judgment debtor insol-vent. The defendants answered separately.' Each denied want of. consideration and fraudulent intent, and alleged as follows : “ Said" defend-• ant denies each and every allegation contained in the. paragraph or subdivision of the complaint, marked and. designated therein as 43d,’ and'alleges that at. .the time. of the- execution and" delivery of the. deeds, of the properties described in said paragraph or subdivision, of the complaint, this defendant (meaning Robert A. Greacen) was the owner of real and personal property in his own right of the value of twenty-five thousand dollars ($25,000)over and-above any indebtedness, which, lie at that time owed,' and- exclusive of the properties referred to. in said paragraph or subdivision of the complaint.” ' .

The order. requires each of the defendants to furnish a bill of particulars - of this allegation of the answer,, showing: First,, a. description of the real property, where it is, when it was acquired, the judgment debtor’s title or interest, and “when the" same was, transferred 'by him and to whom the same was transferred;” s&oond, a description of the personal'.property, showing where it, ig, the value thereof, 'and the- title or interest of the judgment, debtor • therein and “to whom the same was transferred or disposed of by him ; ” and, third, an itemized statement of the value of the property alleged to have been owned by the judgment debtor at the time he transferred the property to his wife; and on their failure to comply therewith, each of the defendants is precluded from offering any evidence upon the trial in support of said allegations.

It was entirely unnecessary for either defendant to allege that the judgment debtor retained property'of the value of $25,000 or any other sum. It was sufficient to deny the allegation of the complaint that the transfers left him insolvent. The plaintiff will be obliged to establish that allegation before she can recover. Neither defendant shows inability to comply with the requirements of the order. The order is, however, I think, too broad. The court may, in a proper case," require a bill of particulars of a mere denial of an allegation of the complaint of á fact which it is incumbent,upon the, plaintiff to establish, as in .an action for partition-, where the defendant denies an allegation that the premises described are the only premises owned by the parties in common. (Crossman v. Wyckoff, 32 App. Div. 32.) The court may also require a bill of particulars of an unnecessary affirmative defense in an answer, such as that here interposed (Cunard v. Francklyn, 111 N. Y. 511), or of the consideration of an assignment or transfer alleged by the plaintiff to have been made without consideration, where the defendants denied the allegation and alleged that it was made for a good and sufficient consideration, (Gas Works Co. v. Standard Gas-Light Co., 47 Hun, 255.) The case at bar falls within the doctrine of" these decisions and is not controlled by Barreto v. Rothschild (93 App. Div. 211), where the action was upon contract and the defendant denied performance and affirmatively alleged failure on the part of the plaintiff to.perform in certain particulars, and it was held that inasmuch as it was incumbent upon , the plaintiff to show performance ■ of the contract, a matter entirely within his knowledge, he was not entitled to á bill of particulars of the alleged violations of the contract claimed by the defendant. Here it must be assumed according to plaintiff’s information that the judgment debtor became insolvent as a result of these, transfers of his property. The judgment debtor, who should know, denies this, and his wife, who assumes to know, likewise denies it. It was, therefore, proper for . the court to order a bill of particulars of the property, ownership of which defendants claim‘was retained by the judgment debtor at the time he executed the transfers tó his wife, and" of the value thereof but it is immaterial to the defense presented by the denials and affirmative allegations-that the judgment debtor still owns the property. •The defendants have not alleged that he still owns it or that he has assigned or transferred it. They merely allege that he owned it at the time lie executed the deeds to his wife. The subsequent disposition of present ownership of the property is not involved’ in the denials or in the affirmative allegations ' of the defendants’answers and they may not, therefore, be required. to furnish a bill of particulars thereof; If, at the time the judgment debtor conveyed the property to his wife, he had formed a design to dispose' of his» other property, with a view to hindering, delaying or defrauding his creditors, and the conveyance to her was without consideration or she knew of his fraudulent purpose and intent, then it might.be. competent to show the subsequent transfer of his remaining property, but such is riot the allegation of the complaint as framed. A bill of particulars will' apprise the plaintiff of tl/e - defendants’ claim and will limit their proof, but to certain facts it would seem that an examination of the defendants would bo more satisfactory, and it may be necesary to enable plaintiff to establish the facts.

It follows that the .order should be modified by omitting the requirement of a statement as to the subsequent^ disposition'of the property by the judgment debtor, or the'present location of the property which be has not disposed of,, and as thus modified affirmed, without costs. " -

MoLAuei-iLiiq J"., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  