
    Charles H. Bender et al., Plaintiffs, v. Margaret A. Van Allen et al., Defendants.
    (Supreme Court, St. Lawrence Special Term,
    July, 1899.)
    Partition — Bill of particulars to prevent surprise by proof of the birth of an heir, not known to the family — Tenant by the curtesy as proper party — His title not triable on a motion for a receiver.
    Where a husband, in occupation of premises as to which his wife died intestate, denies that the persons mentioned in a complaint tor its partition are the sole heirs and next of kin of the intestate and affirmatively alleges by his answer “ that there was a child born alive of said marriage ”, the plaintiffs are entitled to a bill of particulars in order that they may not be surprised on the trial by proof of the birth of a child of which they, although near relatives, have had no previous notice. A tenant by the curtesy may, without admitting his title in that regard to be perfect, be joined as a party to an action of partition to the end that a judgment may be rendered which will pass a clear title. The question whether a child was ever born to the husband, thus entitling him to possession as tenant by the curtesy, will not be decided upon the plaintiffs’ motion for a receiver and that motion will be denied.
    Motions for a bill of particulars and for tlie appointment of a receiver in an action for partition.
    Scherer & Downs, for plaintiffs.
    A. J. Nellis, for defendant Terwilliger.
   Russell, J.

The objections to serving a bill of particulars by the defendant Terwilliger are more technical than meritorious. The plaintiffs bring the action for partition, claiming as brother and brother’s wife of the intestate against the sister and nephew, and have joined the surviving husband of the intestate,. he occupying . the lands of which the intestate died seized. This husband denies in his answer that the brother, sister and nephew are the sole heirs and next of Mn of the deceased; denies also that no issue was born of the marriage of said defendant with the deceased, and affirmatively alleges “ that there was a child bom alive of said marriage.” This allegation gives the sum total of information to the brother, sister and nephew of that of which none of them were aware, viz., that there was a child born, which if living now would inherit solely, and which birth gave, in any event, a tenancy by the curtesy to the surviving husband.

This husband declines to furnish any particulars as to the birth of this child, and resists the application for one, not alone on the general ground that this is not a case for a bill of particulars, but also on the theory that the action cannot be maintained, and that the court should so decide upon the motion in question.

The first objection to the complaint is that there is no allegation that the deceased left no father or mother him surviving. The allegations of the complaint, after stating the relationships, aver that the brother, sister and nephew are the sole heirs-at-law and next of kin of the deceased. This statement is not simply a conclusion of law, but is an averment of fact for the purposes of this motion.

The second objection is that this action cannot be maintained against the husband, he holding adversely. It would seem to be unnecessary circumlocution to require the heirs to maintain an action of ejectment against the husband, and await the determination of that proceeding, before they could maintain an action of partition, requiring two litigations when one would accomplish all that is needed. Ror is this the law. The tendency of later legislation and rulings of courts is to free the action of partition from-all unnecessary limitations. A tenant by the curtesy may be joined in order to make a judgment which shall give a clean title. Code Civ. Pro., § 1539.

It will hardly answer to say that the plaintiffs must concede the tenancy by the curtesy to- be perfect in order to join the husband, where he is in occupation claiming to be such tenant. A disseized cotenant may maintain partition, and all questions of titles may be tried. Weston v. Stoddard, 137 N. Y. 119.

On general grounds there never was a more patent use for a bill of particulars than in the present case. The birth of -a child which so changed family relations would, except under extraordinary circumstances, be well known to the brother and sister of the deceased. And ordinarily the surviving husband would, as soon as he perceived their ignorance in that respect, very promptly have advised such near relatives of his deceased wife of the circumstances attending such birth. And now, to let the husband lie by, and surprise the brother and sister upon the trial with proof of birth at some time or place as to which they have had no previous notice, would be to nullify the beneficial use of a bill of particulars. It has been required in a case of crim. con. (Tilton v. Beecher, 59 N. Y. 176) and in a dower case where the parties were ignorant of the circumstances of the marriage. Govin v. Be Miranda, 87 Hun, 227.

I am, therefore, impressed with the conviction that there is no valid objection to a. bill of particulars, and the defendant presents no affidavit in any manner stating any difficulty in the way of furnishing one.

The motion for a receiver, however, stands upon a different basis. The brother, sister and nephew are not entitled to possession if Terwilliger has the right of curtesy. It will not answer to anticipate, a short time before trial can be had, and determine in advance that he is not entitled to possession by interlocutory order. The motion, therefore, for a receiver is denied, with costs to abide the event, and the motion for a bill of particulars is granted, with like costs, the order to contain not only the information desired as to the birth of the child but the account of the defendant’s claim against the deceased wife. If the bill of particulars already furnished in that respect is sufficient the order may so recite.

Ordered accordingly.  