
    Cornelius H. Slingerland, Plaintiff, v. The International Contracting Co. et al., Defendants.
    (Supreme Court, Columbia Special Term,
    July, 1899.)
    3111 of particulars — Refused as to trespasses which are not denied.
    Where the affidavit of a defendant corporation, made to procure a bill of particulars of a complaint for trespasses, does, not deny their commission nor show that the corporation has no other means of obtaining the information sought, the plaintiff will not be compelled to state the times at which and the corporate agents and the means by which the unlawful acts were committed, nor the times when they were forbidden by the plaintiff, or the names of the persons who subsequently violated the prohibition.
    Motion for a bill of particulars, in an action of trespass.
    Parker & Fiero (J. ETewton Fiero, of counsel), for motion.
    Maynard, Gilbert & Cone (G. Herbert Cone, of counsel), opposed.
   Edwards, J.

Although, the answer in this ease contains a denial of the allegation in the complaint that the defendant, The-International Contracting Company, during the month of September, 1895, deposited rock, earth and other materials in front of and upon the plaintiff’s land described in the complaint, the affidavit on which the motion' for the bill of particulars is based does' not deny the commission by said Contracting Company of the acts complained of, nor show that said company had no means of obtaining the information sought by the bill of particulars; and that, in order to prevent surprise upon the trial, it is necessary to have the knowledge within the possession of the plaintiff.

The information which the International Contracting Company mainly seeks from the plaintiff, is the different days and times during the month of September, 1895, when the said company deposited material in front of and upon the plaintiff’s lands, the names of the agents, servants and employees of the said Contracting Company, together with the names of the tugs and numbers of scows which deposited said material.

I think it quite apparent that if the Contracting Company, in the month of September, 1895, committed the acts complained of, the information sought by this bill of particulars is peculiarly within its knowledge. If it did none of the acts, the necessary evidence is clearly accessible to it. In no event, I think, can it be taken by surprise on the trial, and the furnishing of a bill of particulars would have the effect of limiting the plaintiff’s evidence rather than disclosing to the defendant any information which is necessary in its preparation for trial.

Eor the same reasons, the plaintiff should not be compelled to furnish particulars of the names of the persons and the date when the plaintiff forbade them to deposit any material, or the names of the persons and tugs which continued to deposit material after they were forbidden so to do, or the part of the land of the plaintiff where said material was deposited. I do not think that the names of the persons with whom the plaintiff entered into a written agreement to lease a portion of the privilege to cut and store ice and to erect icehouses is material. It does not appear that the plaintiff has any information as to the depth of the water in front of the lands prior to the commencement of the dumping in 1895, which is not possessed by or accessible to the defendants.

The motion should be denied, with costs.

Motion denied, with costs.  