
    Carrillo v. Carrillo.
    
      (Supreme Court, General Term, First Depmtment.
    
    July 9, 1889.)
    1. Divorce—Adultery—Bill of Particulars.
    A bill of particulars in respect of a charge of adultery in a complaint for divorce is properly denied; as the court, in framing the issues as to adultery for trial by jury, will see that they are sufficiently definite and certain to apprise defendant of the specific charges he is called upon to meet.
    2. Pleading—Motion to Make More Definite.
    Under Rule 22 of the general rules of practice, a motion to make the complaint more definite and certain must be made before answering. ■
    Appeal from special term, Hew York county.
    Action for divorce. Defendant appeals from an order denying a motion for a bill of particulars, and also from an order denying a motion to make the complaint more definite and certain.
    Argued before Van Brunt, P. J., and Barrett and Daniels, ,JJ.
    
      Olcott, Mestre c6 Gonzalez, (William Q. Judge, of counsel,) for appellant. Sullivan <6 Cromwell, (Merritt E. Haviland, of counsel,) for respondent.
   Daniels, J.

The complaint, which is for a divorce, alleged adultery on the part of the defendant at the city of Havana, in the island of Cuba, at divers times between the 1st of January, 1887, and the commencement of the action, with a woman whose name is unknown to the plaintiff. And it wras principally as to this averment that the motion was made for a bill of particulars; and ordinarily, where the motion is sustained by the affidavit of the party, stating his inability to meet the charge, without a more particular description or statement of the facts attending it, a bill of particulars may be ordered, (Cardwell v. Cardwell, 12 Hun, 92;) or, when the motion is made in time, the complaint may be directed to be made more definite and certain. But the defendant is not necessarily, and as a matter of course, entitled to such a bill of particulars. Mitchell v. Mitchell, 61 N. Y. 398. To entitle his' application for the bill to success, his probable inability to meet the allegation as it is set forth in the complaint should be shown; for, notwithstanding the very general nature of the allegation, he may be fully aware of the individual intended to be referred to in making it; and, if he has that knowledge or information, then he cannot be misled or prejudiced in his defense by the omission to state the name or give the description of the person in the complaint, or to designate the place where the misconduct may have occurred.

In this case no affidavit whatever has been made by the defendant, and no information appears to have proceeded from him in any form, indicating his inability to meet this charge, by proof upon the trial, in the form in which it has been made. His answer was not sworn to, as it was not required to be by the practice- of the court. Neither has he in any manner asserted his ignorance of the person or place intended to be referred to in this paragraph of the complaint. But the affidavit on which the motion was made is that of one of the attorneys for the defendant, and he has stated in his affidavit that it is not possible for himself or the defendant to make good the defense unless the plaintiff furnishes particulars as to the specific dates on which the acts alleged are said to have been committed, and also the places in the city of Havana at which they are alleged to have taken place, and that a bill of particulars is required by the defendant for this purpose. This affidavit of the attorney is wholly insufficient to entitle the defendant to a bill of particulars; for it fails to establish the fact that the defendant himself is in any manner ignorant of the individual, or of the time or places where the adultery is alleged to have taken place. On so defective an affidavit as this was, the court was right in refusing the motion for a bill of particulars. In addition to that, there was so much delay in making the application that it was not entitled to the favorable consideration of the court.

The issues in the action have been directed to be tried by a jury on the application of the defendant. For that trial special issues are required to be framed, and in framing those issues care will be taken, on the objection of the defendant, to add such certainty to the charges of misconduct on the part of the defendant as will afford him a complete opportunity to meet, by proof, such charges upon the trial. "Where the complaint is too general and indefinite, it has been the practice in settling the final issues to express them with such a degree of particularity as will avoid all ground for surprise on the part of the defendant. Wood v. Wood, 2 Paige, 108-113. That course is still available for the defendant, and will entitle him to such a statement of the facts as will enable him understandingly and carefuBy to prepare for the trial. The order from which the appeal has been taken should be affirmed, together with $10 costs, and also the disbursements.

Van Brunt, P. J.

I concur upon the ground that the court should, in framing the issues as to adultery, (which are the only issues to be tried by a jury,) see that such issues are sufficiently definite and certain to apprise the defendant of the specific charges which he is called upon to meet.

Barrett, J.

I concur upon the same ground. The issues to be framed

should be specific.

MOTION TO MAKE COMPLAINT MORE DEFINITE AND CERTAIN.

, Daniels, J.

The answer of the defendant in this action was served on the

17th of November, 1888, and the notice of motion to make the complaint more definite and certain was not given until the latter part of January, 1889. This entitled the plaintiff to a denial of the motion; for, by rule 22 of the general rules of practice, a motion of this description is required to be made before the service of a demurrer or an answer. The order accordingly should be affirmed, with $10 costs, and also the disbursements. All concur.  