
    Edward H. Ammidon et al., Resp’ts, v. The Century Rubber Company, App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed June 1, 1891.)
    
    Bill of pabticulabs—Demand not complied with—Stbikino out ANSWEB.
    Where an application is made that the defendants serve a further bill of particulars, and it appears that they are not in a situation to answer the demand, and do not possess theofacts, it is error to strike out their answer.
    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 defense, 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 Hen. 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 “ “ 254 00
    54 “ “ 310 50
    113 Clermont “ 254 25
    54 “ “ 175 50
    99 “ . “ 643 50
    75 Edinboro “ 168 75
    8 “ “ .......................... 26 00
    124 Peasant shirred Garments.................... 248 00
    10 “ “ “ .................... 57 50
    65 Garments ................................. 767 00
    3 “ 6 75
    7 “ 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, 1889, and January 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:
    “November 1st, 273 rubber garments.”
    Then follow eighty-one similar 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, November 2d, To cash, $1,500.”
    Then follow sixty-five similar items with aates 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 plaintiff 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 Bugro 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 orcier so made.
    
      Horwitz & Herschfield, for app’lt; A. II. Ammidon, for resp’t.
   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 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 be decided if the rubber1 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 id., 176; People v. Tweed, 63 id., 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 book-keeping 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 defense 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 defense of its right to liberty or property. Lex non cogit ad impossibilia. In Wigand v. De Jonge, 18 Hun, 405, the court held that “ if it appears that the parties fi’om 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 be 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 plaintiff’s 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, and 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 defense. 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 óf the Eubber Company’s defense. 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. Cooke, 4 Man. and Giran., 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 own.

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; id., 41; 8 How. Pr., 89; I 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 appealéd 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., concur.  