
    The Jewelers’ Mercantile Agency, Limited, Resp’t, v. The Jewelers’ Weekly Publishing Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    Bill of particulars—Fraudulent appropriation of information.
    A mercantile agency brought an action to restrain defendants from publishing information alleged to have been taken from plaintiff’s confidential . sheets and reports; the complaint specifically stated from what source the information claimed to have been purloined by defendants was taken, its character, and how and where the defendants were publishing it.-Defendants made a motion to compel plaintiff to furnish a bill of particulars specifying in detail all of the information alleged to have been appropriated. Held, that the motion was properly denied, as it would disclose plaintiff's evidence, and the particulars, when put in evidence, could not surprise defendant.
    Appeal from order denying motion for a bill of particulars. Leopold Sondheim, for app’lts; Henry K Howland, for resp’t.
   O’Brien, J.

The action is brought by the plaintiff to restrain and enjoin the defendants from appropriating, printing, publishing, or issuing in any way, or for any purpose whatever, information contained in plaintiff’s reference books, weekly correction sheets and reports. The plaintiff carries on the business of a jewelers’ mercantile agency, which consists in obtaining from various sources information as to the places of business, business addresses, details of the business, commercial standing and credit of individuals, firms and corporations engaged in the jewelry trade throughout the country, and in furnishing such information confidentially for the use of subscribers. The defendant, the Jewelers’ Weekly Publishing Company, is a corporation engaged m printing and circulating a weekly publication called “The Jewelers’ Weekly.” In addition to such weekly, the defendant corporation publishes and sells a directory called “A Complete Directory of the Jewelry Trade.”

Plaintiff’s grievance upon which it relies for the relief demanded is that the defendant corporation has appropriated and used, and is continuing to appropriate and use, in violation of plaintiff’s rights, and greatly to its damage, information wrongfully and unlawfully taken from the plaintiff’s reference books, and from the confidential sheets and reports, and publishing and circulating such information in the form of “ A Complete Directory of the Jewelry Trade.” The motion made by the defendants was to compel the plaintiff to furnish a bill of particulars specifying in detail all of the information alleged to have been appropriated and used by the defendant corporation. This motion was denied, and, we think properly so. The defendants fail to apprehend the office of a bill of particulars under our practice. It was never intended by it to furnish to an adversary the evidence which a party might have to prove his claim. The purpose was to limit and define the charges or issuable fact, which an adversary would have to meet, with a view to preventing surprise upon the trial. The theory upon which the bill of particulars here was sought was that it would be necessary for the plaintiff, in order to sustain its cause of action, to prove the errors which, appearing in the plaintiff’s books and proofs, likewise appeared in the defendant’s directory, and which would be available to plaintiff as evidence tending to show the appropriation by defendant as alleged. It should be remembered, however, that pointing out such errors is but evidence to sustain the allegations of the complaint, and it would not be either necessary or essential to maintain plaintiff’s cause of action to point out many such errors. If the plaintiff can show by the evidence of those who copied from the plaintiff’s books, or from witnesses who saw others copying from plaintiff’s books, then resort to the similarity between the two books would be unnecessary; nor would it be essential, to establish the plaintiff’s cause of action, to point out similarity in errors existing in the respective publications of the parties. There is no indefiniteness or uncertainty about the charge made, and to maintain its action the plaintiff must establish the wrongful taking of the information alleged against the defendant. The issuable fact between the parties is not whether errors which appear in the plaintiff’s books appear likewise in the defendant’s publication ; the question at issue is whether the defendant has wrongfully taken and circulated information which belonged exclusively to the plaintiff. This the plaintiff is at liberty to establish, either by pointing out the errors which have been copied from plaintiff’s into the defendant’s publication, or by any other competent proof, and we think sufficient has been said on this point to show that these are not particulars of any claim that is made, but are to be resorted to as evidence by the plaintiff to prove its case against the defendants.

The cases of Newell v. Butler, 38 Hun, 104, and Ball v. Publishing Co., Id. 11, we think, point out the true ground upon which the granting or denial of a motion of this kind should be placed. As said in the former case, Newell v. Butler : “ Where the original pleading itself states the proposition or facts relied upon so specifically and particularly that to require the party pleading to give further information in reference thereto would he to force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for.” And in Ball v. Publishing Co.: “I think it may be laid down as the result of

the adjudications on the subject that the only proper office of a bill of particulars is to give information of the specific proposition for which the pleader contends in respect to any natuaal and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition.” To summarize, therefore, we think that the charge made against the defendant is sufficiently explicit; that the complaint itself specifically states from what source the information claimed to have been purloined by the defendant is taken, its character, and how and where the defendant is publishing it. The effect of requiring the plaintiff to specify the particular information which the defendant is charged with having taken and published in the directory would be to compel plaintiff to disclose the evidence upon which, in part or in whole, it may rely upon the trial. In a case like this, where the charge is distinctly made which the plaintiff is obliged to establish, if upon the trial the plaintiff can prove that the defendant has appropriated its information, it would necessarily follow that no surprise could result to defendant, because such proof should be possible only from the fact that the defendant had been engaged in doing the very thing with which it is charged by the plaintiff.

We are of opinion, therefore, that the order should be affirmed, with costs and disbursements.

Van Brunt, P. J., concurs.  