
    Henry C. Vanderzee, Resp’t, v. Eunice Hallenbeck and Jacob C. Hallenbeck, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    Bill of particulars—When it mat be ordered—Discretionary — What considered on motion for.
    A bill of particulars may be ordered in an action for obstructing a right of way_, but whether or riot it will be in any particular case, rests in the discretion of the court, which is, however, reviewable on appeal. In considering the advisability of ordering a bill of particulars, delay on the part of the moving party will be considered.
    Appeal from an order denying defendants’ motion for a bill of particulars. The action was brought to recover damages for alleged obstructions claimed to have been placed by defendants in plaintiff’s right of way. The complaint alleges that plaintiff is the owner of certain real estate described in the complaint, and has a right of way or easement appurtenant thereto from the same to the public highway. ' The complaint then continues as follows: “That the defendants, continuing and intending to deprive the plaintiff of his said right of way and easement, on or about the 1st day of May, 1879, wrongfully and wilfully erected, and have ever since wrongfully maintained, a stone wall and other obstructions in, upon and over the route or place of said way or easement; have nailed up bars and fences thereon, and placed other obstructions thereon, and dug ditches across the same, so that plaintiff could not, nor could, nor can he, his servants or agents, pass or repass over his said way, or enjoy the privileges and easements to his said lands belonging as aforesaid, and have, during all the time aforesaid, by means of said wall and the obstructions so kept and maintained by defendants, hindered and prevented the plaintiff, his servants and agents, from freely and lawfully passing and repassing to and from his said lands to and from the public highway aforesaid, to his great damage of $1,000 or under.”
    The defendants, by their answer, admit that plaintiff is the owner of the real estate, and has a right of way or easement appurtenant thereto, as described in said complaint, but deny every allegation as to obstructions.
    The defendants, in the affidavits upon which this motion was made, swear “ that the allegations in said complaint are wholly false; ” that defendants never nailed up any fences or bars, or placed other obstructions in plaintiff’s right of way, and have “no knowledge or information as to what time or times plaintiff expects to prove that defendants obstructed plaintiff’s right of way, as alleged in said complaint, or what ‘ bars ’ or ‘ fences ’ plaintiff expects to prove defendants ‘nailed up,’ or where situated, or the times when ‘nailed up,’ or what ‘ditches’ plaintiff expects to prove defendants ‘dug,’ or the times when dug, or the places where dug;” * * * “that defendants cannot safely proceed to the trial of this cause without a bill of particulars thereof,” and “that it is impossible for defendants to properly prepare for the trial of this cause without the bill of particulars asked for. Plaintiff presented no opposing affidavits.
    
      Walter E. Ward, for app’lts; William C. McHarg, for resp’t.
   Per Curiam.

It may be admitted that in this action (which is tort for obstructing a right of way) a bill of particulars may be ordered. Whether such a bill should be ordered, in any particular case, is a matter of sound discretion. We have a right to review the discretion of the special term, but, on an examination of the case, we do not think, we ought to reverse the order. There was certainly no abuse of discretion. And, on all the circumstances of 1 the case, among them the defendants’ delay, it is doubtful whether justice would be promoted by ordering a bill of particulars.

Order affirmed, with ten dollars costs and printing disbursements.  