
    Rose Haggerty, Respondent, v. John Ryan, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    1. Appeal — Bill of particulars.
    An appeal from an order denying a motion for a bill of particulars before answer will not be entertained where it appears that the appellant has answered since the making of the order.
    . 2. Bill of particulars — Premature motion.
    A motion for a bill of particulars to prevent surprise and for use on the trial is premature when made before issue joined.
    3. Same — Slander.
    In ah action for slander a bill of particulars, specifying the names of the persons in whose presence the words were uttered, may properly be ordered.
    Appear from so much, of an order as denies the appellant’s motion for a bill of particulars of the names of the persons in whose presence respondent alleges and intends to prove that the alleged false and defamatory utterances mentioned in the complaint were made, or that the complaint be made more definite and certain by so specifying.
    James A. Ryan, for appellant.
    A. H. Herrick, for respondent.
   O’Dwyer, J.

The defendant having moved before answer for a bill of particulars, it. was necessary for him to show "that the particulars were required to enable him to prepare his answer; and it now appearing that he has answered since the making of the order on that motion this court will not entertain the appeal, as by his own act defendant has deprived himself of any advantage to be gained by a reversal. Woodruff v. Austin, 16 Misc. Rep. 543; 38 N. Y. Supp. 787.

The defendant also asked in the same motion for the particulars, in order to prevent surprise and be prepared for trial of the cause, but on that branch, the motion being made before issue joined, it was premature. Watertown Paper Co. v. West, 38 N. Y. Supp. 229; Pots v. Herman, 7 Misc. Rep. 5.

The names of the person or persons in whose presence and hearing the words were spoken seem to us to be of grave importance, as otherwise the' defendant upon the trial may he taken wholly by surprise by the production of testimony he is wholly unprepared to explain or contradict otherwise than by his own denial, and, we think, it would he a proper exercise of discretion to direct a bill of particulars specifying the names of the person or persons in whose presence the words are claimed to have been spokeb. Stiebeling v. Lockhaus, 21 Hun, 457.

For ¡this relief the defendant is granted leave to apply at Special-' Term.

The appeal must be dismissed, with $10 costs.

Van Wyck, Ch. J., and Conlan, J., concur.

Appeal dismissed, with $10 costs.  