
    Irene Pinto De Carrillo, Resp’t, v. Enrique Carrillo, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Divorce—Adultery—Bill of particulars.
    Where the affidavit on a motion for a bill of particulars in respect to a charge of adultery in a complaint for divorce fails to establish the fact that the defendant is in any manner ignorant of the individual or of the times or places where the adultery is alleged to have taken place: Held, that such motion was properly denied.
    2. Same—Practice m settling issues for jury trial.
    Where the complaint in an action for divorce on the ground of adultery is too general and indefinite, it is the practice in settling the final issues for a trial by a jury to express them with such a degree of particularity as will avoid all ground for surprise on the part of the defendant.
    Appeal from an order denying a motion for a bill of particulars.
    
      Emmet JR. Olcott and William Q. Judge, for app’lts; William Nelson Cromwell and Merritt E. llaviland, for resp't.
   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 was 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 carefully, to prepare for the trial. The order from which the appeal has been taken, should be affirmed, together with ten dollars costs, and also the disbursements.

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 meek

Van Brunt, Ch. J., concurs.

Barrett, J.

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