
    Charles H. Moses, Appellant, v. Albert H. Hatch and Susan A. R. Moses, as Executors, etc., of William Moses, Deceased, Respondents.
    
      Bill of ptM'tioulars — statement as to the nature of a writing, required—otherwise as to the names of witnesses.
    
    The complaint in an action brought to recover a balance alleged to be due for work, labor and services, rendered to the defendants’ testator between August, 1879, and February, 1896, alleged that the work, labor and services were worth a certain amount, and that the testator “ promised to pay that sum to the plaintiff for the same from month to month.” The plaintiff, in apparent compliance with a demand for a bill of particulars made by the defendants (who denied in their answer any knowledge or information sufficient to form a belief respecting the promise and the amount of the payments), served a paper which stated that the promise or agreement alleged in the complaint “ was an implied promise, a verbal promise and a promise in writing. That the dates of the promise were at various times between May 1st, 1879, and February 20th, 1896 ; that the place where the promise was made was the city of New York and the city of Brooklyn.”
    
      Held, that the plaintiff should be required to serve a further bill of particulars stating the nature and character of the alleged writings or memoranda, and when they were made ;
    That he should not be required to state the names of the persons to whom the alleged verbal promises were made.
    Appeal by the plaintiff, Charles H. Moses, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of September, 1897, requiring him to furnish a further bill of particulars.
    
      W. W. Wiles, for the appellant.
    
      A. B. Smith, for the respondents.
   Patterson, J.:

This is an appeal from an order requiring the plaintiff to furnish ■a further bill of particulars of the claim set forth in the complaint. The action was to recover a balance of $27,722.93 for work, labor and services alleged to have been performed by the plaintiff for the defendants’ testator during his lifetime, and between the 1st of August, 1879, and the 20th of February, 1896, both inclusive. It is alleged that such labor and services were reasonably worth a certain amount, and that William Moses, the testator, “ promised to pay that sum to the plaintiff for the same, from month to month.” The complaint then gives credit for a certain sum paid on account.

The answer admits that the plaintiff did perform some work, labor and services for the defendants’ testator, but alleges that the defendants have no knowledge or information sufficient to form a belief as to the value thereof over the amount paid by the testator during his lifetime. The averment in the complaint respecting the promise of William Moses to pay is denied by an allegation of the want of sufficient knowledge or information to form a belief with respect thereto.

A demand was made by the defendants’ attorneys upon the plaintiff for a bill of particulars setting forth whether the promise alleged in the complaint to have been made by William Moses was a verbal one or in writing, and also stating the date when, and the place where, the said promise or agreement was made. In apparent compliance with that demand, a paper purporting to be a bill of particulars was served by the plaintiff on the defendants. That so-called bill of particulars contains the statement that “ the promise or agreement of the testator, William Moses, to this plaintiff, claimed in the complaint, was an implied promise, a verbal promise, and a promise in writing. That the dates of the promise were at various times between May 1st, 1879, and February 20th, 1896; that the place where the promise was made was the city of Flew York and the city of Brooklyn.” Upon the receipt of that communication the defendants moved the court for a further bill of particulars, which motion was granted, and the plaintiff was required by the order to serve a further verified bill of particulars, “ stating when, where, and to whom the promises are severally alleged to have been made by defendants’ testator, as claimed in the complaint and former bill of particulars herein,” and to give the defendants an inspection of the writing containing the agreement or promise.

By the admission of the plaintiff there was some kind of a written agreement or promise. The defendants showed that they could not find among the papers of the testator, after an examination of his books and other records, any memorandum or entry indicating the existence of any such agreement in writing. They were absolutely in ignorance of any specific contract or obligation upon the part of their testator, although they admit that the plaintiff was employed by him and that he did render services for such testator. The answering affidavit of the plaintiff states that there was a written memorandum which was retained by William Moses, and some provision made in a will executed by William Moses that contained the written promise, and that those papers were retained by William Moses, and if they existed would naturally be in the possession of the defendants; and that he had, therefore, no means of complying with any requirement for the inspection of the written evidence of the contract. Upon these facts being made to appear by the plaintiff, the court below should not have made the order requiring an inspection of documents. The plaintiff showed he was not in a situation to comply with any such command ; but the court should have required him to state the character of the alleged writings, in what form they were made, and when and in whose possession he last saw them. The defendants were entitled to have the proof limited in that way.

The defendants were entitled to know when and where the promises alleged to have been made by the defendants’ testator were made, and to limit the proof to such times and places in order that they might have a reasonable opportunity to produce witnesses and to meet the proof of their adversary. (Cunard v. Francklyn, 111 N. Y. 511.) In that respect the order was right, but with reference to the provisions of the order as to giving the names of the plaintiff’s witnesses we think it was not properly made. It is not the office of a bill of particulars to apprise the defendant of the nature of the plaintiff’s proof or, in general, the names of his witnesses, and thus to confine the plaintiff merely to calling the witnesses named in the bill of particulars. There may be exceptional cases in which it is necessary for a party to know the name of some particular witness, but there was nothing shown in the affidavits of the moving party to make such an exceptional case.

The order appealed from should be modified by striking out the provisions relating to the inspection of documents and by inserting a provision requiring the plaintiff to state the nature and character of the alleged writings or memoranda, and when such writings or memoranda were made ; and also by striking out that provision of the order which which requires the plaintiff to state to' whom the verbal promises were made, and as thus modified, the order is affirmed, without costs to either party.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Williams, J., dissented.

Judgment modified as directed in opinion and affirmed as modified, without costs.  