
    Herman Passavant et al., Resp’ts,. v. Herman Canter, Impleaded, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Practice—Bill of particulars—When ordered.
    The complaint in an action, against the assignor and assignee of a general assignment for the benefit of creditors, to set aside said assignment as fraudulent, alleged that there was a failure to pass over the entire property to the assignee and a reservation with intent to defraud creditors and that there was a scheme to defraud including the acquisition of goods on credit, and the disposition of them for cash and a reservation for the benefit of the assignor: On a motion for a bill of particulars of the property claimed to be retained, etc. Meld, that plaintiff- would not be required to furnish a bill of particulars. That in this case to do so would be to compel him to disclose much of his evidence. That the proper remedy was a motion for an order to make the complaint more definite and certain. Following Mayor, etc., v. The Bank, 14 Week. Dig., 492.
    2. Pleading in equity—What required where fraud is charged.
    A general certainty is sufficient in pleading in equity and though a mere general charge of fraud is insufficient it is not necessary that particular facts and circumstances which confirm and assist should be minutely charged.
    Appeal from order denying defendant’s motion for a bill of particulars.
    
      Browner, for app’lt; Hughes, for resp’ts.
   Per Curiam.

The careful opinion of the learned judge, in the court below gives ample reason for the denial of the motion.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

The following is the opinion of O’Brien, J., at special term.

O’Brien, J.

The defendant assignee asked for a bill of particulars of certain matters relating to plaintiffs’ cause of action, which alleges fraud by the assignor, invalidating an assigment for the benefit of creditors as the basis of the ■ action, and the particulars of the alleged fraud are required. This same motion was made before Mr. Justice Patterson, and was by him disposed of upon the ground that the • moving papers were technically defective, and upon that ground the motion was denied, with leave to renew, so that upon new affidavits' the motion is presented to me upon its merits. The paragraphs of the complaint to which reference is made are as follows:

Thirteenth. That as plaintiffs are informed and believe the said defendant Isaac Sickle failed to deliver to his assignee, the said defendant Herman Cantor, all the property owned by him or in which he had an interest at the time of making of the said assignment, reported to be a general assignment, and that the said defendant, Isaac Sickle, as plaintiffs are informed and believe, has fraudulently secreted and reserved for his own benefit, a large portion of the property that he then had, and executed the said instrument, with intent to hinder, delay and defraud his creditors, including these plaintiffs.

Fourteenth. That as plaintiffs are informed and believe, the said instrument purporting to be a general assignment is the culmination of a conspiracy on the part of the defendant Isaac Sickle to fraudulently obtain goods, wares and merchandise from his different creditors, including these plaintiffs, for the purpose of fraudulently disposing of the same, or a portion thereof, and with the further intention not to apply the proceeds of the said disposition to the payment of the claims of the said creditors, but to reserve the_ same for his own benefit, and after greatly reducing his assets by such fraudulent reservations and fraudulent secretions, to hinder and delay his said creditors by the making of the said instrument purporting to be a general assigment.

The particulars asked for upon this motion are:

First. A detailed statement of the property which the defendant Sickle failed to deliver to his assignee, which he fraudulently secreted and reserved for benefit; also the dates of such reservations and the names of the persons with whom they were made.

Second. A detailed statement of the goods claimed to have been fraudulently obtained, from whom such goods were obtained, and what portion thereof was reserved by defendant Sickle for his own benefit. The assignor and assignee, the two defendants in this action, are both parties to the conveyeance which is alleged to be fraudulent, and to that extent may be regarded as in privity with each other. They appear by the same attorneys, and upon the motion before Mr. Justice Patterson, joined in the demand for a bill of particulars, which, if granted on the assignee’s application, enures to the benefit of the assignee. There is nothing presented upon this motion as to the assignee’s knowledge or lack of knowledge as to the reservations. The defendant Cantor has received the books and papers of the assignor, and has made up a schedule.

As said by Judge Wallace in Wilson v. Pearson (13 Federal Rep., 386): “The particularity with which a defendant should be required to inform his advsrsary as to essential facts which are in controversy, depends upon the nature of the facts and the extent to which the information may be fairly presumed to be within the cognizance of the respective parties. A party should never be required to make specification of the matters which from their inherent character are not capable of exactitude, or which constitute evidence rather than substantive facts, nor to require information which is more presumably within the knowledge of the adversary than his own.”

There is no vagueness or uncertainty about the allegations of the complaint. The facts stated being, first, a failure to pass over the entire property to the assignee, and a reservation with intent to defraud creditors; and sécond, a scheme to defraud, including the acquisition of goods on credit, and the disposition of them for cash, and a reservation for the benefit of the assignor.

In Wigand v. Dejonge (18 Hun, 406), it is said that “if the information sought is in the possession of the party asking it, then it will be plain that the application for specific details should be denied, if it appears in addition that the parties from whom the particulars are asked are not in a situation to answer the demand.”

In Newell v. Butler (38 Hun, 104), it was said: “The result of the numerous adjudications relating to the scope and nature of a bill of particulars is, that its only proper office is to give information of the proposition which plaintiff intends to prove in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition.” I have not overlooked the cases of Claflin v. Smith, 13 Abb. N. C., p. 206, and Gas Works Co. v. Gas Light Co., 13 N. Y. State Rep., 339. In the former case a bill of particulars was ordered. In that case, however, the motion was made by one set of creditors seeking to sustain the assignment against another set of creditors seeking to set it aside on the ground of fraud. The present case seems to me to be clearly distinguishable, for while in Claflin v. Smith, it was evident that the persons seeking the information did not know the facts, nor were they in position to know, and as the learned justice there said, “The plaintiff in such a case may be compelled to furnish a bill of particulars of the time and place of the acts and things which he intends to prove as showing fraudulent intent,” what was said in Mayor v. The Bank (14 Week. Dig., p. 492), is applicable here. These applications are addressed wholly to the discretion of the court. Whether it shall be granted or not depends on the particular circumstances of each case. Conflict in the authorities is due to lack of similarity between the cases presented for decision. Upon the complaint it appears to me that the effect of requiring the plaintiff to furnish a bill of particulars will not only be to compel him to disclose much of his evidence, but would be a hardship. The complaint itself appears to me to satisfy the rules applicable to equity pleadings. A general certainty is sufficient in pleadings in equity, and though a mere general charge of fraud is insufficient, it is not to be understood that particular facts and circumstances which confirm and assist should be minutely charged. It is not necessary or proper that pleadings at law or in equity should be encumbered with all the matters of evidence the complaint may intend to introduce. Wait on Fraudulent Conveyances, § 142.

Were the plaintiffs compelled to state the persons with whom and times when and the manner in which the defendant had fraudulently disposed of his property, in a bill of particulars, they would, upon the trial, be confined to such proof, yet they might be in a position, without being possessed of this knowledge, to establish a prima facie case by showing such a gross deficiency between the assets which the assignor turned over to the assignee, and the assets, which under ordinary business dealings, he should have had at the time of his assignment as to put the defendants tó their proof. Considering the nature of the action itself and the relative positions of the parties, and the fact that the knowledge in reference to the statements of fraud if they existed, are, by reason of the possession of the books and of the entire estate of the assignor, more within the possession of the assignee, this application is denied, without costs.  