
    The Gas Works Construction Company of Philadelphia Resp’t, v. The Standard Gas Light Company (Limited), of the City of New York et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    1. Bill op particulars—Power op court to order.
    This action was brought to set aside and annul assignments of one-half of certain patents. The plaintiff assigned the rights to that extent to a party retained by it for the purpose of selling them, and it is alleged that he in -violation of the authority given him assigned the interest held by him to one of the defendants for a nominal sum, and that it passed by other assignments successively to the remaining defendants. These assignments, it was averred' by the complaint, were fraudulent, and made without consideration, and with notice of the plaintiff’s right and title. The defendants admitted the fact of the assignments, but alleged them to have been made for a good and valuable consideration without disclosing its nature or extent. Held, that the court, had power to order a bill of particulars or particular statement of the consideration which was so generally averred and relied on by the answer.
    3. Pleadings—supplemental answer—When allowed.
    
      Held, that where some of the defendants had, by assignment, parted with their interest after answer, they should be permitted to serve supplemental answers stating the fact. Code Civ. Pro., g 844.
    Appeal by the Standard Gas Light Co. and Wallace C. Andrews from an order denying a motion for leave to serve supplemental answers, and by the same defendants and Joseph A. Monheimer from an order directing the service of a bill of particulars, and motion by plaintiff to dismiss the latter appeals.
    
      Gratz Nathan and J. W. Hawes, for app’lts; De Lancy Nicoll and James B. Dill, for resp’t.
   Daniels, J.

The action has been brought to set aside and annul assignments of one-half of certain patents for improvements in hydro carbon gas generators. The plaintiff prosecutes the action as the assignee of the patentee, and employed Benjamin F. Sherman to make a sale of the patented invention for the city of New York. To empower him to act in that capacity, an assignment of the patents to that extent was made to him, and he, as it is alleged, in contravention of the intended authority given to him, assigned a one-half interest in the invention to the defendant Monheimer for a nominal consideration, and Monheimer afterwards assigned the same interest to the defendant Andrews, and he assigned that interest to the Standard Gas Light Co. of the city of New York.

It is averred in the complaint that these assignments were fraudulent in their character, and made without consideration and with notice of the plaintiff’s right and title to the invention. These defendants admitted the assignments respectively made to them, but alleged them to have been executed and delivered for a good and valuable consideration, without stating or disclosing the particular nature or extent of that consideration, and the order directed the service of a bill of particulars, requiring these defendants tv serve a statement in writing of the consideration paid, to whom paid and received—when, where, and the amount, if in money.

Whether the assignments were made for a good and valuable consideration will probably prove a material subject of litigation and inquiry upon the trial. The existence of that consideration is contested-by the plaintiff and asserted by these respective defendants.

What the order requires to be done is to apprise the plaintiff of the actual consideration paid for each of the assignments. It is not evidence that is wanted, but a statement of the facts of what the consideration will be alleged to consist, for which these respective assignments were executed and delivered. And that the court has the power to order a bill of particulars, or a particular statement, of the consideration which has been so generally averred and relied upon in the answer, was held in the case of Witkowski v. Paramore (93 N. Y., 467).

The statement which the order directs to be served will do no more than to apprise the plaintiff of the particular consideration for which the assignments were executed and delivered, and that information is necessary to avoid surprise upon the trial, and to afford the plaintiff the opportunity of meeting or explaining the statement by evidence, so far as that may be in its power, if it shall afterwards become necessary, when the trial of the action shall take place. The order requiring the service of these particular statements seems to be justified by the circumstance that the plaintiff was not a party to either of the assignments, and they materially affect its rights and interests as owner of the inventions, and it can only obtain the information necessary to place it in a position to meet the averments made, by the service of the statements provided for in this order. And the propriety of requiring it has not been removed by the assignments of the controverted interest from the Standard Gas Light Company to the defendant Andrews, and the assignment, thereof from Andrews to the defendant Monheimer.

For it may still he insisted by the latter upon the trial that these other defendants obtained a legal title under their assignments, and that he is entitled to be protected in the enjoyment of that title as their assignee.

The fact that the plaintiff is entitled to the statement of the particulars directed to be served by the order, renders it unnecessary to consider the objection made that the defendants have deprived themselves of the right to appeal by obtaining an extension of the time to comply with the order for the service of the particulars. That motion may, therefore, be dismissed, as it should be, without costs.

The application of the defendants, the Standard Gas Light Company and Wallace C. Andrews, for liberty to serve a supplemental answer, was made upon the ground that they had assigned and transferred their interests under the assignments to them, back to the defendant Monheimer.

These assignments were made after the service of the answers in the suit and may have the effect of exonerating these particular defendants from further liability after the execution and delivery of their assignments. It is not requisite that it be determined whether their assignments will be attended with that result or not. It is sufficient for the purposes of the litigation that they may have a material bearing upon it in the final determination of the rights-of the parties, and that is sufficient under'section 544 of the .Code of Civil Procedure, to entitle them to an order permitting the service of their supplemental .answers. By that permission the courts are required to permit , such an answer to be served, alleging material facts which .have occurred after the answer itself has been served to the plaintiff’s complaint. The facts which have been .presented bring the case within this section of the Code.

The supplemental answers will work no legal injury to the plaintiff, but they may be of material benefit to all the parties in the litigation, for they will present a truthful statement of these additional facts, which it may prove important for the court to consider upon the final trial and hearing.

The order denying the motion for leave to serve the supplemental answers should be reversed with ten dollars costs and also the disbursements with liberty to the defendants to serve such answers on payment of the costs opposing the motion within ten days after the notice of this decision, and the order directing the service of the bills of particulars should be affirmed with the same costs and disbursements, and with liberty within the same time to serve the bills or statement of the particulars previously mentioned.

And the motion to dismiss the appeals from the order for the bills of particulars should be dismissed.

Van Brunt, Ch. J., and Brady, J., concur.  