
    Rosie Borgrosser, Appellant, v. Eberhard F. Risch and Bertha Risch, Respondents.
    Second Department,
    February 23, 1912.
    Pleading—bill of particulars — specific performance—form of order — staying further prosecution — abstract of title.
    An order requiring the plaintiff in a suit for the specific performance of a contract for the exchange of real estate to furnish a bill of particulars is unauthorized in so far as it stays further prosecution until the particulars are furnished.
    A direction in the order that plaintiff furnish in the bill of particulars an abstract of her title is not justified, as the same is a matter of public record.
    Appeal by the plaintiff, Rosie Borgrosser, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of November, 1911.
    
      Nathan April [Harry Cook with him on the brief], for the appellant.
    
      Leonard J. Reynolds, for the respondents.
   Woodward, J.:

The plaintiff brings this action for the specific performance of a contract for the exchange of real property. The complaint contains the usual averments as to the making and delivery of the contract, and that she was at the time set for closing the same, and has been at all times since, ready, willing and able to complete the transaction, and demands judgment decreeing the specific performance of the contract, the defendants having refused to close as provided by the contract. The answer of the defendants denies the breach of the contract, and sets up two affirmative defenses. The first of these alleges that the plaintiff was unable to convey a good title to the premises which she had contracted to sell, and the second that the defendants were induced to enter into the contract by reason ©f fraudulent representations to them made by agents of the plaintiff. After issue had thus been joined, the defendants moved for a bill of particulars, resulting in the order appealed from. The order of the court commands the plaintiff to furnish the form of the deed as well as a summary of its contents, which the plaintiff then tendered to the defendants, in alleged performance of the contract, and an abstract of the title of the plaintiff in the property which she purported to convey, dating from the time that a certain corporation known as the Appleby & Wood Company held title to the premises. The order further provides that if these matters cannot with due diligence be ascertained by the plaintiff, she should so state, and it is further provided that until such particulars be furnished, as directed, the plaintiff be stayed from further prosecution of her action.

The rule is so well established that it is improper to penalize parties in reference to bills of particulars that it goes without saying that this order, in so far as it stays the plaintiff’s action, is unauthorized. (Prym v. Peck & Mack Co., 136 App. Div. 566, 568, and authority there cited; Lee v. Brown, 142 id. 933.) We are likewise of the opinion that, in so far as the order directs the plaintiff to furnish in a bill of particulars her abstract of title from the Appleby & Wood Company, it is not justified. It is nowhere alleged in the complaint that the plaintiff claims title through this company, or even that there is any such company in existence. But assuming that there is such a company, and that the plaintiff’s title comes through it, these are matters of public record, as accessible to the defendants as to the plaintiff, and it asks for matter of a purely evidential character and which the plaintiff ought not to be called upon to produce in advance of the trial. She has alleged that she has been at all times mentioned in the complaint ready, willing and able to give the title which her contract calls for, and the burden is, of course, upon her to establish this fact; not that she has title through any particular person or corporation, but that she has such a title as her contract mentions.

The appeal does not complain of the portion of the order which calls for the form of the deed tendered, but does question the order in the other respects mentioned, and, we are of opinion, correctly.

The order appealed from should be modified in accordance with this opinion, and as so modified affirmed, without costs to either party.

Jenks, P. J., Hirschberg and Rich, JJ., concurred; Burr, J., not voting.

Order modified in accordance with opinion by Woodward, J., and as so modified affirmed, without costs.  