
    EDWARD H. AMMIDOWN, et al., Respondents v. THE CENTURY RUBBER COMPANY, et al., Appellants.
    
      Bill of particulars—Demand of further bill ordered by court and motion for further bill and information considered.
    
    In the case at bar. the plaintiffs demanded a bill of particulars of defendants of advances alleged in the answer, and after the service of a bill in compliance with the demand, plaintiffs moved for a further bill, showing specific dates of consignments and advances, and their motion being granted, and the further bill having been served, the plaintiffs moved for a further bill giving additional and particular information demanded. On this last motion, and in opposition thereto, defendants read and filed an affidavit in substance, and to the effect, that defendants were utterly unable to furnish any particulars in the matter further than those already submitted in the two bills of particulars theretofore furnished and submitted. Notwithstanding this affidavit, and the opposition to the motion for this third and further bill of particulars, the judge at special term required the defendants to furnish the required account and information within ten days, or in default thereof the answer be stricken out, etc.
    On appeal from this order, Held, that if the defendants cannot give a more particularized bill than already given, it is certainly not in furtherance of justice to strike out the defence and refuse a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defence of his right to liberty or property “Yea; non cogit ad impossibilia." The Rubber Company proves that it cannot give the additional information required, and there is no evidence to the contrary; under such circumstances the application should have been denied.
    Bills of particulars may be ordered to aid the administration of justice, but never where the direction tends to defeat, jeopardize or impair it. The court must exercise a wise discretion in granting or withholding the order.
    Order reversed and application for the further bill of particulars denied.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided June 1, 1891.
    Statement of the case by the Court.
    The action is in replevin to recover the possession of certain goods, of the value of about $7,000, which were sold by the plaintiffs and delivered by them to the defendants Carpenter and Lockwood, upon the faith of certain representations as to their financial standing and condition, which turned out to be ‘fraudulent. Part of the goods have been made up into 832 waterproof garments, identified in the complaint by certain numbers. The plaintiffs allege that the Century Rubber Company, a domestic corporation, which is joined as a co-defendant, was the sole agent of the defendant Carpenter and as such obtained from him the possession of the property and thereafter refused to deliver it up to the plaintiff, after demand made therefor, and after the plaintiffs had elected to rescind for the fraud and their title by such rescission had become known to all of the defendants.
    The answer of the Century Rubber Company is substantially a denial of the material allegations of the complaint, and an affirmative plea in defence, that the goods formed a portion of divers consignments made by Carpenter and Lockwood to the Rubber Company, upon which it had made advances, and that on account of such advances there is now due $2,452.65, and that the Rubber Company acquired a special property in the goods with the right to retain them until the said sum was fully paid to it. The contention of the Rubber Company is that whether Carpenter and Lockwood were bona fide or fraudulent vendees of the goods, that it, by advances made in good faith and without knowledge of any wrong-doing on the part of the vendees, acquired a valid lien upon the goods with the right to retain them, until they are reimbursed therefor. The plaintiffs by way of reply deny every allegation of the answer respecting the advances or lien. The plaintiffs demanded a bill of particulars of the alleged advances, in response to which the Century Rubber Company served the following :
    93 Peasant Garments, $279 00 127 it it . 254 00 54 it it 310 50 113 Clermont it . 254 25 54 it tt 175 50 99 tt it 643 50 75 Edinboro it 168 75 8 it tt 26 00 124 Peasant Shirred Garments, . . 248 00 10 a it tt 57 50 65 Garments, • • • • . 767 00 3 it it 6 75 ,7 U a . 22 75
    $3,213 50 .
    The plaintiff thereupon moved for a further bill, and Judge Freedman directed that the Rubber Company serve a bill of particulars showing the date of each and every consignment to said Company of the goods in suit, or any of them, the sum and sums advanced upon each consignment, and the date or dates of each and every advance upon the goods contained in such consignment. As a compliance with this order the Rubber Company served a further bill of particulars as follows: “ During the months,of November and December, 1389, and Jan-nary and February, 1890, the firm of C. C. Carpenter consigned to the defendant, The Century Rubber Company, a large quantity of manufactured garments, composed in part of the material which is the subject matter of the plaintiffs’ claim. The merchandise so consigned consisted of the following : Nov. 1st., 273 rubber garments.”
    Then follow 81 similiar items, with dates and particulars as above.
    Then comes this statement: “ Upon this merchandise the defendant, The Century Rubber Company, advanced to the said firm of C. C. Carpenter the following sums upon the following dates respectively: 1889, Nov. 2d, to cash $1,500.”
    Then follow 65 similar items, with dates and particulars as above.
    Then comes this statement: “ The consignments of merchandise above referred to were all made within the period of the four months above stated, but from the large quantity of such consignments and from the altered character of the goods in their manufactured state, it is wholly impossible for the defendant to particularize upon what precise day during the said period any precise portion of the plaintiffs’ alleged goods was received by the defendant, but it was all received within the period above mentioned, and all forms a part of the above-mentioned enumeration of manufactured garments.”
    The plaintiffs not having received an account of the sums advanced on each particular consignment, with the date of such consignment and the specific advance thereon, moved for a further bill giving this particular information. In opposition to the motion the defendant relied on the facts stated in the following affidavit:
    £‘ Sigmund Bendit, being duly sworn, says that he is the secretary and treasurer of the Century Rubber Company, the defendant herein; that, in addition to the two bills of particulars already prepared by him, he
    
      is utterly unable to furnish any particulars in the matter further than those already submitted; that he has made a thorough examination of his books, but is not able therefrom to add anything to what the bills of particulars already served contain.”
    Venue and Jurat.
    Notwithstanding this affidavit, Judge Dugkro required the defendant to furnish the required account within ten days, or in default thereof that the answer of the Rubber Company be stricken out.
    The Rubber Company appeals from the order so made.
    
      Horwitz & Hershfield, for appellants, argued :—
    I. The order appealed from is harsh and oppressive. A further bill of particulars ought not to be ordered, because such an order will be oppressive in its operation. The scope of an order requiring a bill of particulars is a question of discretion, but it is plain that when from the necessities of the case all has been done, as has been done by the defendant in this case, the court, in exercising such discretion, will “ not impose unnecessary labor,” and where, from all the circumstances of the case, an order “may have an oppressive operation,” Wigand v. De Jonge, 18 Hun, 407, the court will not grant it.
    II. The plaintiffs are in possession of all the essential facts that the defendants can furnish. A further bill of particulars ought not to be required, because the plaintiffs have in their possession all the essential facts they seek to obtain' from the defendants; and where the party knows what his adversary means to rely on for his defence, no particulars will be ordered. Stevens v. Webb, 4 Civ. Proc. R. 64. Nor where the information sought for lies within the knowledge of the party who seeks it. Fink v. Jetter, 38 Hun, 163. Nor where the claim is fairly described in the pleadings. Banks v. Ocean Nat. Bank, 53 How. 51. The plaintiffs cannot assume ignorance of what the defendant’s claim is, nor of what goods the defendant claims a lien on, as the answer and bills of particulars already served sufficiently apprise the plaintiffs of the defendant’s claim, since a bill of particulars is sufficient if it fairly apprises the party of the grounds of claim, so that he cannot be surprised. Stowits v. Bank of Troy, 21 Wend. 186 ; Brown v. Williams, 4 Ib. 360.
    III. The bills of particulars already furnished cover all the ground, and perform all the functions required of a bill of particulars. It is not the office of a bill of particulars to state the grounds upon which plaintiff seeks to recover, but only to point out the items and particulars of his claim. Seaman v. Low, 4 Bosw. 337. Its office is to amplify a pleading, and indicate to the defendant the nature of the claim that he will be called upon to meet, so that he may not be taken by surprise from the generality of the pleadings, and come to the trial unprepared as to the nature of his defence.- Enright v. Seymour, 8 State Rep. 356. Its office being to amplify a pleading that might otherwise be vague, ambiguous or too general in its statement, where the bills already served have apprised the opposite party of the specific claims made, “ the demand for and allowance of particulars ought not to go beyond the necessity of the case.” In Wigand v. De Jonge, 18 Hun, 405, the court said : “ Orders for particulars are made in the interest of justice, and for the purpose of its advancement. A party must not be sent to trial without knowledge of the accusation against him. He must be subjected to no surprise. But while this rule attains in the administration of justice, another consideration of equal importance is that the court will make no order which will shield the defendant from just responsibility. If the information sought is in the possession of the party asking it, then it will be plain that the application is stimulated by some motive other than a desire for- specific details; and if it appears in addition that the parties from whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.”
    IV. The motion for a further bill of particulars should have been denied. In La Scala v. Lyon, (Supreme Court, General Term, June 6th, 1890,) 11 N. Y. Supp. 31, the court held “ that a motion to compel a defendant to furnish a bill of particulars is properly denied where the answer, setting up justification, is elaborate, gives many details, and defendant swears that he has stated the elements of the justification with as great particularity as he can.” The affidavit of the secretary and treasurer of the defendant showed that he is utterly unable to furnish any particulars in the matter further than those already,submitted, and after a thorough examination of his books, is not able to add anything to what the two bills of particulars already served contain. The defendant having, with as great particularity as possible, given all the details in its possession, cannot be expected to do more, as, “ where a party is unable to give minute particulars, he may be excused from giving them if the substantial rights of the other party may be guarded. Baremore v. Taylor, 53 N. Y. Supr. 119.
    
      A. H. Ammidown, for respondents, argued:—
    I. Each consignment of goods fraudulently purchased can be held only for the advances made thereon in good faith and unpaid, and not for advances generally or a precedent debt, and the particulars ordered by Mr. Justice Freedman are important and necessary to prevent surprise at the trial and enable plaintiff to prepare for trial. Adams v. Bowerman, 109 N. Y. 23 ; Farwell v. Imp. & T. Bk., 90 Ib. 483; Dows v. Kidder, 84 Ib. 121.
    II. The defendant-company served a bill giving practically no particulars and professing no inability except “ it is wholly impossible for the defendant to particularize upon what precise day during the said period any precise portion of the plaintiffs’ alleged goods was received by the defendants,” but made no pretence that the time of receipt could not be given within a day or two, or that the time of consignment as distinguished from the time of receipt could not be given exactly, or that the time of receipt of the “ replevied garments ” as distinguished from the “ goods ” could not be given exactly.
    III. Plaintiffs made a motion that the order of Mr. Justice Freedman be complied with or the answer be stricken out, or for other relief, and the affidavit of A. H. Amtnidown stated facts tending to show and claimed to show, together with the other papers in the case, that said defendant was attempting to evade said order, and no part of said affidavit is denied. The order appealed from was proper on the ground that the bill of particulars served was evasive. Gas Works Construction Co. v. Standard Gas Light Co., 16 State Rep. 1001.
    IV. The defendants in opposition to plaintiffs’ motion for a further bill presented only the affidavit of one Sigmund Bendit, that he was the secretary and treasurer of said defendant, and “ he has made a thorough examination of his books, but is not able therefrom to add anything to what the bills of particulars already served contained,” but did not swear that the defendant-company could not comply with Mr. Justice Freedman’s order, and he had himself verified the complaint as true of his own knowledge.
    V. The ignorance of a single agent or officer is of no consequence or not conclusive. Baremore v. Taylor, 53 Superior Court, 119. In Witkowski v. Paramore, 93 N. Y. 467, it was stated in the answer that .defendant could not state the exact amount, but a bill of particulars was nevertheless ordered. It was presumed to be within their knowledge. In Humphrey v. Cottley, 4 Cow. 54, an affidavit was made that they “ could not ” “ give the precise dates and times,” but the order requiring the precise dates and times was nevertheless allowed to stand. The Hon. Justice who made the order appealed from might properly under all the facts of this case have ordered the answer stricken out without any qualifications. Gross v. Clark, 87 N. Y. 272.
   By the Court.—McAdam, J.

The plaintiffs are evidently proceeding upon the theory that the goods, though fraudulently purchased by Carpenter and Lockwood, cannot be taken from the Rubber Company if it in good faith made advances on the security thereof. They claim, however, that the goods cannot be held for advances generally or a precedent debt, and their object in insisting upon the last bill ordered is to enable them to determine whether the lien asserted is for a precedent debt, advances generally, or for specific advances on particular consignments. This could readily be decided if the Rubber Company specified separately each consignment with the special advance made thereon. This course would also enable the court to see at a glance the precise question to be determined. Courts are liberal in requiring bills of particulars as a sort of curative aid in the administration of justice by preventing surprise and giving each party a reasonable opportunity to produce his proofs and to meet and sift those of his adversary. Dwight v. Germania Co., 84 N. Y. 493 ; Tilton v. Beecher, 59 Ib. 176; People v. Tweed, 63 Ib. 194. The inconvenience of furnishing the information is no answer to the application. Inability to' furnish it may form a complete answer. 2 Am. and Eng. Enc. of Law, 247 ; Chandler v. Stevens, 2 Month. L. Bul. 5. To this phase of the question we must give our attention.

The plaintiffs are seeking information concerning transactions between the Rubber Company on the one hand and Carpenter and Lockwood on the other. It is fair to assume that while those transactions continued, the Rubber Company had no anticipation that the information now sought would be required. That they kept 'their accounts in a general way, crediting each consignment as it came in and charging Carpenter and Lockwood with the advances as they were from time to time made. Ordinarily that system of bookkeeping would suffice.

The Rubber Company kept on making advances as goods came in, taking care at all times, that the security exceeded the sums advanced. This system would not require a separate entry for each consignment, nor an entry of a specific advance thereon. The Rubber Company, by the affidavit of its treasurer, proves this, in effect, when he swears that “ he is utterly unable to furnish any particulars in the matter further than he has already furnished; that he has made a thorough examination of his books but he is not able to add anything to what the bills of particulars already served contain.” If the Rubber Company cannot give a more particularized bill than it has already given, it is certainly not in furtherance of justice to strike, out its defence, and refuse it a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defence of its right to liberty or property. Lex non eogit ad impossibilia. In Wigand v. DeJonge, 18 Hun, 405, the court held, that if it appears that the parties from whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.” This is as it should be. See Broom's Legal Maxims, 242.

Suppose a merchant loses his books by fire, larceny or other cause, is he to be denied his day in court because he cannot particularize his account ? Certainly not. Nor is he to b.e so deprived because his system of bookkeeping does not enable him to divide up his accounts to suit contingencies he never expected to meet. An illiterate man who keeps accounts according to a method of his own is not to be deprived of justice because his system does not enable him to give an account with the accuracy or particularity a skilled bookkeeper might have given if he had had charge of • the business. In all these cases the explanation is to go to the jury, and in the light of their best judgment they are to determine the facts with reference to their inherent probability or improbability, in view of the. situation of the party, his systems and methods.

The Eubber Company proves that it cannot give- the additional information required, and there is no evidence to the contrary. Under such circumstances a proper case was presented for denying the plaintiffs’ application. To sustain the order appealed from means that the defendant’s answer is to be stricken out,, and that it must lose its advances amounting to $2,452.65, simply because it did not keep books or accounts to meet a contingency it.was under no obligation to expect. It will not do to say that if the defendant cannot give the information now it cannot furnish it on the trial, atid that it might as well be defeated now as then.

The Eubber Company may be able to prove by Carpenter and Lockwood, or by their books or bookkeeper, all that is necessary to prove in defence. The law gives it the privilege of compelling Carpenter and Lockwood and their bookkeeper to appear, and of requiring them to produce their books in aid of the Eubber Company’s defence. We cannot hold in advance how far this evidence may go or what it will prove.

These things should be ascertained at the trial, which is a constitutional right, and not upon mere motion in advance of it. The defendant may have no means of securing this information or evidence except at the trial, and he is not to be deprived of the opportunity of obtaining it. Bills of particulars may be ordered to aid the administration of justice, but never where • the direction may tend to defeat, jeopardize or impair it. A bill of particulars is not matter of right, is a mere creature of the court, and is no part of the record.

Blunt v. Cook, 4 Man. and Gran. 458. The court must exercise a wise discretion in granting or withholding it. This appeal is a continuation of the motion in the same court, and we are called upon to adopt the discretion of the special term judge or to reject it and substitute our owm

In the analogous proceeding to compel the adverse party to exhibit a document or serve a copy, it is a complete answer to the motion that the-party is unable to do either. 4 Abb. Pr. 233; Ib. 41; 8 How. Pr. 89 ; 1 Duer, 652 ; 25 How. Pr. 522; 1 Robt. 681; 16 Abb. Pr. 1; 20 W. Dig. 85. A bill of particulars is a mere amplification of the pleadings, intended to furnish facts, not evidence. If the pleading is sufficient on its face to entitle the party to a trial, he cannot be deprived of it, simply because he does not particularize the facts to suit the pleasure of his adversary, if the refusal to do so be not capricious, but real, resulting from positive inability, and not from contumacy. "

It will not do to say that the defendant ought to have prepared itself for the present condition of things. The more appropriate question to ask is whether it is prepared for the emergency. The court must act on things as they are, and not as they ought to be, or as the plaintiffs would like to have them.

For these reasons, and on the ground of the inability of the defendant to give the information required, the order appealed from must be reversed, and the application for a further bill of particulars denied, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.  