
    Nicholas Jones, Respondent, v. Mary E. McDonough and Others, Appellants.
    Second Department,
    February 10, 1911.
    Pleading — bill of particulars — fraud and undue influence.
    Where by a paragraph of the answer to a complaint in ejectment the defendant alleges that the deed under which the plaintiff claims was obtained by deception, fraudulent importunity and undue influence exerted on the grantor by the plaintiff at a time she was unable to resist the same, the defendant should be required to give a bill of particulars of such affirmative defense only in so far as he intends to claim fraud and undue influence other than that set forth with sufficient particularity in preceding paragraphs of the answer.,
    Appeal by the defendants, Mary E. McDonough and others, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of October, 1910.
    
      Thomas J. Farrell, for the appellants.
    
      Joseph P. Reilly, for the respondent.
   Carr, J:

The defendants in this action appeal from part of an order made at Special Term in Kings county, requiring them to furnish a bill'of particulars relating to an affirmative defense set up in their answer. The action is in ejectment. The plaintiff claims that he is the owner of certain described premises, that the defendants are in possession and withhold possession from him, and asks appropriate relief. The defendants answer that they are heirs-at-law of one Helen A. Jones, deceased, who died in possession of and owning the fee of the premises in question on the 28th day of November, 1907. They then proceed to set up in paragraphs of their answer marked 3 and 4, that for one year prior to her death Helen A. Jones was mentally and physically incapable of transacting business as the result of a stroke of cerebral apoplexy, and that while in this condition the plaintiff obtained from her, on October 28,1907, an instrument purporting to be a deed of the premises in question, and that he claims under this deed. There is a further allegation that when the instrumeat was executed Helen A. Jones was, by reason of her enfeebled condition of mind and body, incapable of comprehending the nature and effect of the instrument so procured from her by the plaintiff and did not understand or comprehend the same when she executed it, nor did she comprehend the rights and interests of the defendants in said premises in case of her death intestate.

By paragraph 5 of the answer it was further alleged as follows: “ That said instrument was obtained from said Helen A. Jones by the deception, fraudulent importunity and undue influence exerted on her by the plaintiff herein, at a time when she was, by reason of her aforesaid condition, unable to resist the same.”

On the application of the plaintiff an order was made directing the defendants to serve a bill of particulars specifying, among other things, as follows: “ 1. The nature, character and manner of each and every act of deception and fraudulent importunity and undue influence which the said defendants will undertake to prove at the trial of this action as having been exerted on Helen A. Jones by the plaintiff herein as alleged or referred to in paragraph designated 1 Fifth ’ of the answers of the said defendants.” From this part of the order the defendants appeal.

On the face of the answer it is not clear that the defendants intended in the paragraph marked “ Fifth ” to do anything further than to state their conclusions of fact as to the matters alleged in the paragraphs marked “Third” and “Fourth.” If such was their intent, then they should not be required to furnish a bill of particulars as to such matters, for they cannot very well do so without disclosing in detail their evidence, and this they are not required to do, as the matters set forth in paragraphs “ Third ” and “ Fourth ” sufficiently apprise the plaintiff of the issue which he has to meet. (Hazard v. Birdsall, 61 Hun, 208.) If, however, the defendants intended by the 5 th paragraph of their answer to allege fraud and undue influence other than that stated in the 3d and 4th paragraphs, the allegation is so vague and indefinite as to justify the ordering of a bill of particulars thereof. The situation presented is easily remedied by modifying the order to so restrict the bill of particulars as to matters alleged in the 5th paragraph of the answer which aver fraud or undue influence other than that alleged in paragraphs 3 and 4.

The order, so far as it is appealed from, should he so modified, and as thus modified affirmed, without costs.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

Order in so far as appealed from modified in accordance with opinion, and. as so modified affirmed, without costs.  