
    JULIUS BIEN, et al., Appellants v. THEODORE HELLMAN, Impleaded, etc., Respondent.
    
      Bill of particulars, motion for, when allowed or refused.
    
    The order in this case having been made before answer, it was incumbent on the moving defendant to establish a necessity for the order at that stage of the litigation to enable him to prepare an answer to the complaint, which claimed a recovery for a certain balance due upon the alleged contract.
    The defendant showed by his statements in the moving affidavits that he was never interested in business with his co-defendants in any way or manner, and if there is any agreement in writing with his signature, it is a forgery. Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish a bill of particulars, for the defendant showed his ability to answer the complaint and positively deny all its allegations.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 2, 1892.
    Appeal from an order of the special term directing service of a bill of particulars by the plaintiffs upon the defendant.
    
      Franklin Bien, attorney and of counsel, for appellants.
    
      Seligman & Seligman, attorneys, and George W. Seligman of counsel, for respondent.
   By the Court.—Freedman, J.

The complaint is founded upon a theatrical contract alleged to have been made by the respondent and two other defendants as co-partners in a certain theatrical business.

The particulars which were ordered to be furnished, were as to (a.) The nature of the agreement sued on, whether oral or in writing, (b.) The nature and items of the theatrical printing and of the materials therefor alleged in the complaint to have been furtiished to the defendants, and of those alleged in the complaint to have been delivered to the defendants, (c.) The items of the credit of §1,115.50 to which the defendants are alleged in the complaint to be entitled.

The order having been made before answer, it was incumbent upon the moving defendant to establish a necessity for the granting of the order at that stage of the litigation in order to enable him to prepare his answer to the complaint which was for a certain balance due upon the alleged contract.

But the said defendant himself showed that he never was a partner of the co-defendants ; that he never had any dealings with the plaintiffs; that he never was interested in business with the co-defendants in any way or manner, and that if there is any agreement in writing with his signature, it is a forgery.

Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish a bill of particulars, for the defendant showed his ability to positively deny all the allegations of the complaint.

The order should be reversed, with ten dollars costs, etc.

Sedgwick, Ch. J., and McAdam, J., concurred.  