
    Kate R. Barnes, Appelant, v. Alfred P. Gardiner, Respondent.
    First Department,
    July 13, 1909.
    Pleading"—MU of particulars—action against aggnt for an accounting.
    Where, in an action against an agent for an accounting, the principal alleges that a certain- account rendered by the agent was fraudulent and1 that a paper purporting to be a receipt in full signed' by her was obtaiinediby fraud, and asks that- the accounting he; set .aside, the defendant is. entitled to- a bill of particulars of the facts relating to the alleged fraud- practiced upon the plaintiff by which she was induced to execute the instrument.
    But the plaintiff should" not be required to furnish a bill' of; particulars' of property transferred by her fro the defendant and received by Mm: as agen t or trustee, for if an interlocutory judgment for.au accounting, be, rendered: the- defendant must file an account to which the plaintiff may. file-objections,, whereupon the issues so raised, will be referred.
    JJor should the plaintiff be required to state the date and nature of every paper executed* by her at the instance of the defendant the- contents of which sire did not understand),, inasmuch, as- there was but, one- paper signed by her which she. seeks to avoid.
    App-eae by tire plaintiff, Kate B. Barnes, from an order of the Supreme Court, made at the Kew York Special' Term and entered in the office- of tire- clerk of the county of Kew- York on the 4th day June, 1909, directing the plaintiff to furnish a bill of particulars.
    
      Earl Bryant Barnes, for the appellant.
    
      James S. Darcy, for the respondent.
   Ingraham, J.:

The; complaint alleges tha-t the plaintiff and the defendant’s-, wife were sisters and resided: together ini the city of. Kew York; that on' the, 16th of Jume* 1903, the: plaintiff, and the- defendants wife inherited from an aunt a, large amount of personal’ property and also an. undivided) interest in- certain real, property in- Kew York and Kew Jersey ; that the plaintiff intrusted to the defendant the full charge* possession; and control of her personal property fdr which' the defendant received $1,000 a year;; that the defendant remained in possession of this property and also collected the income upon plaintiff’s real' property until about the 1st of December, 1908, when plaintiff requested the- defendant to. deliver to her attorney whatever property of hers he had in his possession and to render an accounting; that subsequently the defendant delivered certain personal property to the plaintiff and also certain papers which purported to be an accounting by the' defendant; that among said papers so submitted as and for an accounting is a copy of a paper dated January 12, 1907, purporting to be signed by the plaintiff and to,be a receipt in full and a full satisfactory accounting by the defendant for all business transacted by him for the plaintiff up to that date ;' that the plaintiff had no recollection of ever having signed such a paper and if same was signed by her it was in ignorance of its contents and its significance; that no accounting in fact was made by the defendant to the plaintiff at that time or any time after said date prior to the month of December, 1908, and she alleges that her signature to said paper was procured fraudulently and for the purpose of securing to the defendant and his wife, Adele K. .Gardiner, the profits, of tlieir said transactions with the plaintiff and in abuse of his relation of trust. And the complaint demands judgment for an accounting as agent of the plaintiff; that the pretended accounting of January 12, 1907, mentioned in the complaint, be set aside and. declared fraudulent and void, and for such other and further relief as may be-just and equitable.

The defendant in his answer set up this instrument dated January 12, 1907, as a full accounting of his acts as agent of the plaintiff and also alleges that on December 23, 1908, the defendant rendered a full and complete account to the plaintiff of all the property mentioned in the accounting agreement of January -12^ 1907, and plaintiff then received all the property that the defendant had in his hands; and states that he is ready and willing to rhake a full and complete account to plaintiff'of all the property mentioned in said accounting agreement of January 12,1907. Other defenses are alleged, and the defendant demands judgment that the complaint be dismissed.

Upon the pleadings the plaintiff would be entitled to an interlocutory judgment for an accounting from January-12, 1907. In her complaint,, however, she seeks to set aside the alleged accounting of January 12, 1907, and asks that it be declared fraudulent and void. Upon the trial, therefore, the only question presented would be the extent of the accounting to which the plaintiff is entitled, and that would depend upon the effect of this instrument of January .12, 1907; and whether it is binding upon the plaintiff. The defendant is entitled to a bill of particulars of the facts relating to the alleged fraud practiced upon her by which she was induced to execute the instrument of January 12, 1907.' But it is not apparent how the facts in relatiori to the receipts and disbursements of the defendant as trustee or agent are at all material upon the trial of the one issue of fact before-the court, except to show the course of dealing. Thus, it was quite proper for the court to direct the plaintiff to furnish the particulars specified in the 1st clause of the order. The other clauses of the order, however, relate to the property that was transferred by the plaintiff to defendant, or that the defendant'received as her agent or representative, which would be a matter for the accounting, and has no relevancy upon the trial of the action. By the interlocutory judgment the defendant would be required to file an account as to which plaintiff can filé objections when the question as to the statement of account will necessarily be referred to a referee. Whether that account will relate to all transactions, since the defendant acted as agent or trustee for the plaintiff, or will be limited to an accounting from January 12,1907, will depend upon the disposition the court makes of the plaintiff’s claim as to the character of the instrument of January 12, 1907, and as to whether that instrument is a final settlement of the accounts between the plaintiff and defendant up to that time. By the 4th clause of the order the plaintiff is required to state the dateymd nature of each and every paper executed or signed by the plaintiff, at the instance or suggestion of the defendant, the contents or effect of which she did not understand at the time of the signing or execution thereof alleged in the complaint. There is but one paper that is signed by the plaintiff which she seeks to avoid, and that is the instrument of January 12, 1907, and there is no other instrument interposed by the defendant as a defense to the action. The effect of any such instrument other than that of January 12, 1907, would be a question to be determined upon the accounting.

I think, therefore, that the defendant was entitled only to the particulars required to be furnished by the. 1st clause of the order, and the order should be modified by striking out all of the order except the 1st clause thereof, and as thus modified affirmed, without costs.

McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without, costs. .  