
    Charles Furthmann, Respondent, v. Gertrude Furthmann, Appellant.
    First Department,
    February 7, 1913.
    Husband and wife — divorce — complaint — bill of particulars — motion to exclude evidence.
    Where the complaint in an action for divorce is framed in such general terms as to permit plaintiff to offer proof of adulteries committed anywhere, with any man, and at any time within a period of two years, his general statement, upon a motion for a bill of particulars, that he cannot give with greater particularity the exact times when or places where the alleged acts of adultery were committed, will not be accepted.
    A request upon such a motion that plaintiff be precluded from offering proof respecting matters concerning which he fails to give particulars is premature. It is time enough to consider such request when the bill of particulars has been furnished.
    Appeal by the defendant, Gertrude Furthmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1912, resettling an order entered on the 13th day of December, 1912, denying the defendant’s motion for a bill of particulars.
    
      James W. Osborne, for the appellant.
    
      Abraham Levy, for the respondent.
   Scott, J.:

The plaintiff sues for divorce upon the ground of adultery by a complaint containing no less than sixteen paragraphs setting forth alleged acts of adultery in the most sweeping and general terms. At a cursory glance the complaint appears to set forth names and places with considerable particularity, but it abounds with indefinite phrases such as “ divers other men ” and “divers other places,” so that, in effect, it would permit plaintiff to offer proof to show adulteries committed anywhere, with any man, and at any time within a period of two years. It is manifest that such a complaint as this affords no information to defendant as to what she will be called upon to meet, and that it would be quite impossible to frame issues which would certainly cover the matters to be tried. The purpose of granting a bill of particulars in a case like the present is, as has often been said, to define the issues which are to be tried, and unless plaintiff has drawn his complaint recklessly and bases it only on suspicion, he must be able to state more definitely than he has done what charges against his wife he expects to support by proof.

Indeed his attempted denial of his ability to give further particulars is but half-hearted and far from convincing and it is quite evident that his controlling reason is that stated in his affidavit to the effect that he is advised by his counsel that because he expects to prove his charges by circumstantial evidence he is “not obliged to furnish any of the details required by the defendant or her attorneys.” This advice was doubtless based upon the case of Krauss v. Krauss (13 App. Div. 509), much relied on by respondent upon this appeal, and cited by the justice at Special Term as authority for the denial of the motion.

The Krauss case was very different from this. There was but one corespondent named, and the places at which the adultery was alleged to have been committed, evidently the successive residences of the corespondent, were stated with particularity. All that was not stated was the particular day or days on which the adultery was committed. It was very apparent that the plaintiff expected to rely upon a continuous intimacy accompanied by such circumstances as would justify the inference that the intimacy had been adulterous. In such a case it would not be necessary for plaintiff to point out and prove the precise dates on which acts of adultery were committed, and, therefore, she was not required to specify them.

It may be in the present case that the plaintiff is honestly ■unable, and should not be required to tie himself down quite so closely as defendant would have him do, yet it is entirely clear that she is entitled to much closer specifications of what she may be called upon to meet at the trial than is afforded by the complaint. The plaintiff has not been sufficiently frank and ingenuous with the court to enable us to say in detail how far he should be required to comply with the defendant’s demand, or how much latitude of specification should be allowed him in the interests of justice. We cannot accept his general statement that he cannot give with greater particularity the exact times when or places where the alleged acts of adultery were committed in view of the very general charges in his complaint. If he cannot exactly specify, he can at least limit the range of his charges. Upon the papers before us the best disposition of the motion will be to grant the motion as it is made, inserting in the order the provision contemplated by the notice of motion that in case the plaintiff has no knowledge or is unable to give precise particulars with reference to any of the matters as to which particulars are ordered he shall so state under oath. Of course he will be expected to make an honest attempt to comply with the order, and must be prepared to satisfy the court as to his good faith. So much of the motion as asks that the plaintiff be precluded from offering proof respecting matters concerning which plaintiff fails to give particulars is premature. It will bé time enough to consider that question when the bill of particulars has been furnished.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted to the extent above indicated, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarice and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.  