
    Andrew Gilhooly, as Assignee, etc., Resp’t, v. American Surety Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    BILL OF PABTICULABS — 'WHEN.
    Where the defendant, in an action by an assignee for the benefit of creditors, alleges that the assignment is fraudulent, he may be required to specify wherein it is fraudulent.
    Appeal from an order, requiring the defendant to furnish a bill of particulars.
    The action was brought to recover the sum of $2,100 damages for an alleged unlawful seizure under execution of personal property claimed by plaintiff as assignee. The original defendant was John J. Gorman, sheriff of the city and county of New York. By an order of the court, the American Surety Company, the indemnitor of said sheriff, was substituted as defendant in his place. The bond of indemnity to the sheriff was furnished at the instance of .the Franklin National Bank, which is the real defendant in interest. The answer of defendant admits the making of the general assignment by James Grange, set forth in the complaint, but denies that plaintiff, as such assignee, is or was the owner of the personal property mentioned and described in the complaint herein, and alleges a levy by the sheriff on said property by virtue of an ■execution, alleged to have been issued to him on a judgment alleged to have been recovered in the city court of New York in favor of the Franklin National Bank, as plaintiff, against said ■James Grange, as defendant, for $1,949.76. The answer further alleges as follows: “For a further and separate defense this defendant alleges that the said assignment mentioned in paragraph 1 of the complaint was made by the said James Grange with intent to hinder, delay, and defraud his creditors, and particularly to de^ lay, hinder, and defraud the Franklin National Bank of the City of New York, and that said assignment was and is altogether void as against the said Franklin National Bank and the other creditors of said Grange, and that the title to the property mentioned in paragraph 2 of the complaint never passed to the plaintiff, but remained the property of James Grange.”
    On plaintiff’s motion, the order appealed from was made, directing defendant to “deliver to the plaintiff’s attorney a statement in writing, under oath, specifying particularly the separate act or acts of James Grange, the assignor, and other matters which the defendant expects or intends to prove upon the trial of this action, to show that the assignment mentioned in the complaint was made ■by said James Grange with the intent to hinder, delay, and defraud his creditors, and the Franklin National Bank of the City of New York, and that the same is void; and also what property, if any, the defendant expects or intends to prove on the - trial of this action was withheld by said James Grange from the plaintiff, as the general assignee of his property; and also the times and places at which such alleged acts and matters took place, and particularly to what person or persons, and at what times and places, the defendant intends or expects to prove at the trial of this action that the said James Grange made secret and other assignments of his estate to others than the plaintiff; and also which of the claims, if any, preferred in said assignment are claimed by the defendant to be fraudulent; and, in default of such service, that the defendant be precluded from giving evidence upon the trial of this action regarding any of the matters or things above specified.
    
      J. C. Ross, for app’lt; Ernest Hall, for resp’t.
   Per Curiam.

— The defendant should not be required to specify its evidence, but sufficient of the particulars should be given so as to prevent surprise upon the trial. In that connection we think the defendant should state whether it claims the assignment to be void on account of fraudulent preferences, in which case it should state what preferences are claimed to be fraudulent. Or, if the alleged fraud consists in the failure of his assignor to transfer all his assets to the plaintiff, in that event the defendant should particularize what property, if any, if expects or intends to prove on the trial was withheld by the assignor from the assignee. And if •on both grounds, then all the particulars above specified should be given.

Order as so modified affirmed, without cbsts.  