
    PEOPLE ex rel. SWINBURNE v. NOLAN.
    N. Y. Supreme Court, Third Department, Third District;
    
    
      Albany Special Term,
    
      May, 1882.
    
      Again, Ulster Special Term, July, 1882.
    Quo Wabranto.—Pleading.—When Complaint is not Indefinite and Uncertain.—Bill op Particulars.—Stay op Proceedings pending Appeal prom Order.
    The complaint in an action in the nature of a quo warranta, which alleges that the relator was by the greatest number of legal votes cast elected to the office in controversy, need not contain a statement of the specific facts tending to prove such general allegation; and an order will not be granted requiring it .to be made more definite and certain, under section 546 of the Code of Civil Procedure.
    In such case, however, where it appears that the defendant is ignorant of the facts upon which the relator’s claim is founded, a bill of particulars will be ordered.
    Neither the fact that in prior proceedings in another tribunal, which were generally published in newspapers, defendant derived knowledge of relator’s claim ; nor that the relator swears upon information and belief that defendant has more accurate knowledge and information than himself ; nor that plaintiffs have not yet obtained information of all the facts which they hope to prove; nor the fact that what is claimed to be a full and sufficient bill of particulars was served on the argument, will defeat defendant’s application for a bill of particulars. In sucli case, however, the court may order that the bill of particulars already served be deemed to be served in compliance with the order, thus giving plaintiffs the benefit of the service, without precluding defendant as to its sufficiency. The order may also allow the plaintiffs to move for leave to serve other and additional bills upon such terms as may then be deemed proper.
    Where the precise question decided on an interlocutory application is unsettled and of frequent occurrence, and an appeal is taken in good faith and may be prosecuted to an early determination, a stay of proceedings pending such appeal is proper and should be granted, notwithstanding the confidence of the judge who decided the motion, as to the correctness of his conclusions.
    Motion by defendant to make the complaint more definite and certain ; and for a bill of particulars. The facts sufficiently appear from the opinion.
    
      Edwin Countryman, for the motion.
    
      Matthew Hale and A. S. Draper, opposed.
   Westbrook, J.

The complaint avers that at an .election held in and for the city of Albany on the second Tuesday of April, 1882, “ the above-named John Swinburne was, as the plaintiffs allege upon information and belief, by the greatest number of legal votes cast at such election, duly and legally elected mayor of said city of Albany for the term of two years, to commence on the first Tuesday of May, 1882, and this action is brought upon the relátion of the said John Swinburne. That notwithstanding the election of the said John Swinburne to said office by the greatest number of legal votes cast at said election, the defendant, Michael NT. Nolan, has, as plaintiffs allege on their information and belief, usurped and" intruded into, and now unlawfully holds and exercises within said city the office of mayor of said city of Albany, and unlawfully claims and assumes tobe the mayor of said city, and lo have the right to exercise the duties of the office for the term of two years from the first Tuesday of May, 1882.”

The relief demanded by the complaint is that the said John Swinburne may be adjudged to have been duly elected mayor of the city of Albany, as is therein averred, and that the defendant, Nolan, has no such right to hold said office of mayor after the first Tuesday of May, 1882, as he claims and pretends to have, “and that the plaintiffs may recover of the defendant- the costs of this action, and that the defendant be evicted and excluded from said office, and be adjudged to pay to the plaintiff a fine of two thousand dollars.”

The affidavit of the defendant, upon which the present motion to make the complaint more definite and certain, and for a bill of particulars, is founded, alleges, that at the charter election held in and for the city of Albany on the second Tuesday of April, 1882, all the votes cast for the office of mayor of said city, with the exception of two, were given either to the relator, John Swinburne, or to the defendant, Michael N. Nolan. That according to the official canvass of the votes cast for said office, and which canvass was in all respects conducted according to law, it was ascertained and declared that the defendant had received 9,339 votes, and the relator 9,221 votes. “ That there are seventeen wards, and thirty-eight election districts in the city of Albany, and a poll was held, and votes were received for the office of mayor at such charter election, in each and every of said wards and districts, numbering in' the aggregate, as appears from the final canvass, 18,562 votes.” That as the defendant “has no knowledge or information of the particular grounds, or reasons, or facts, on which the relator bases his claim, or allegation, in the complaint, that he ‘was by the greatest number of legal votes cast at such election duly and legally elected mayor of said city of Albany ’ . . . or what he intends or expects to prove in order to sustain such claim or allegation, and to overthrow the official canvass of the votes cast at said election, and the official determination and declaration lawfully made as aforesaid, that the defendant had been duly elected mayor of said city,” he asks that the complaint should be made more definite, and for a bill of particulars.

Is the defendant, upon the facts which have been stated, entitled to have the complaint made more definite and certain, and also to a particular statement of the facts, upon which the plaintiffs rely to maintain their action 2

First. Should the complaint be made more definite and certain 2

A complaint in the precise form with the one in this ' case was held, in People ex rel. Crane v. Ryder (12 N. Y. 433), good on demurrer.

The same form was also adopted and used in People v. Cook (14 Barb. 259; 8 N. Y. 67), and in People ex rel. Judson v. Thacher (55 Id. 525), and is the one in general use in actions of this character.

It is claimed, however, on the part of the defendant, that though this form of complaint is good on demurrer, yet under section 546 of the Code he is entitled to have it made more definite and certain. Is this claim well founded 2

The section of the Code referred to reads as follows : “When one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment.’-’ It can hardly be said, that the complaint in this action is either “indefinite or uncertain.” The title to an office depends upon the votes cast, and when a party avers in the pleading that he has received the greatest number of legal votes given at an election for such office, he has, if he be eligible thereto, averred the existence of the only fact which makes him its incumbent. It is true, that in making an averment in this general form, the party does not state all the circumstances upon which its truth depends, but in alleging that he has received the greatest number of legal votes given at an election, he has charged the existence of a' fact, and it has been held (Hyatt v. McMahon. 25 Barb. 457), that, “in alleging a fact, it is not necessary to state such'circumstances as merely tend to prove the fact,” and also that an averment in the general form adopted in the complaint is the averment “ of a fact, and not of a conclusion of law.” Thus, also, in Williams v. Wilson (8 Adol. & Ell. 314) it was decided: “It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts, which are the means of producing it, or the evidence sustaining the allegation. Thus, in a case very familiar and about identical with the present, if a trespass be justified by a plea, of highway, the pleader never states how the locus in quo became a highway ; and if the plaintiffs claim that the locus in quo . . . had ceased to be such at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such.”

But the precise point was-held in People ex rel. Crane v. Ryder (12 N. Y. 433), before cited. The court, per Marvin, J. (page 437), says : “ The Code requires that the complaint contain a plain and precise statement of facts constituting a cause of action, without unnecessary repetition (§ 142). This rule is substantially as it existed prior to its enactment in actions at law. Chitty says, in general, whatever circumstances are necessary to constitute the cause of complaint, or the ground of the defense, must be stated in the pleadings, and all beyond is surplusage; facts only are to be stated, and not arguments or inferences or matter of law, in which respects the pleadings at law appear to differ materially from those in equity (1 Ch. Pl. 245). At page 266 he says it is a most important principle of the law of pleading that in alleging the fact it is unnecessary to state such circumstances as merely tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. The object of the pleadings is to arrive at a specific issue upon a given and material fact, and this is attained, although the evidence of such fact to be laid before the jury be not specifically developed in the pleadings (and see Firth v. Thrush, 8 B. & C. 387; Dyett v. Pendleton, 8 Cow. 727).”

From the extract just given from the opinion of Marvin, J., in People v. Ryder, it is evident that the court of appeals have decided that so much of the defendant’s motion as seeks the embodiment in the plaintiff’s complaint of the specific facts which tend to prove the general fact therein alleged, that John Swinburne was by the greatest number of legal votes chosen mayor of the city of Albany, must be denied. A careful study of the whole opinion demonstrates this beyond any doubt whatever, and the allusion on page 440 to a motion of this character does not in the slightest degree sustain this branch of the present motion, but it refers only to the allegation of the time when the election referred to in the case cited was held.

The opinion of Rapallo, J., in Tilton v. Beecher (59 N. Y. 176, 183), is also an authority directly against the application of the defendant in this case to have the plaintiff’s complaint made more definite and certain ; but without any extended comment thereon, and contenting myself with a simple reference thereto, I proceed to examine the next branch of the present motion, which presents the question. Second. Is the defendant entitled to a bill of particulars of the plaintiff’ s claim ?

Since the decision of the court of appeals in Tilton v. Beecher (59 N. Y. 176), just referred to, there can be no doubt as to the answer which this question requires. It was held by the court of appeals in that case, that “Bills of particulars maybe ordered ‘ in all cases’ (Code, § 158), and an application for such a bill is the appropriate proceeding, when a party seeks to be fully apprised of the particulars or circumstances of time and place, of the matters set forth in his opponent’s pleadings.” A perusal of the entire opinion of Judge Rapallo will be profitable in this connection, for its language, and the language of the cases cited, present much more forcibly and clearly the right of a party to be put in possession of the circumstances or facts upon which his adversary relies, than the extract from the reporter’s syllabus of the case just given does.

The same doctrine was re-asserted by the same court in the very recent case of Dwight v. Insurance Companies (84 N. Y. 493). In delivering the opinion of the court, and speaking of the power of courts to require bills of particulars in all cases and the propriety of its exercise, Folger, Ch. J. (page 503), says: “It is a power incident to the general authority of the court in the administration of justice. It is the same power, in kind, that courts have to grant a new trial on the ground of surprise. The latter is remedial and curative. The former is preventive. But both have the same purpose, to reach exact justice between the parties, by learning just what is the truth, and to learn what is the truth, by giving to each party all reasonable opportunity to produce his own proofs, and to meet and sift those of his adversary.”

In ascertaining the extent to which the rule has been carried, the following cases may also be profitably consulted: Diossy v. Rust (46 Super. Ct. [J. & S.] 374); Stiebeling v. Lockhaus (21 Hun, 457); Leigh v. Atwater (2 Abb. N. C. 419); Mayor, &c. of N. Y. v. Marrener (49 How. Pr. 36). The rule is beyond all doubt firmly settled, that a. party, in any and every action, is entitled to know the particulars of the claim which he is to meet, and that this is necessary to the attainment of justice. The application of this rule to the present case is manifest. The defendant alleges, and his allegation in this respect is not denied, that, according to the official canvass, there were cast, at the recent charter election in the city of Albany, for the office of mayor, 18,652 votes, of which number the same official canvass declared Michael N. Nolan received 9,339 votes, and John Swinburne received 9,221. Notwithstanding such official declaration and count, the plaintiffs allege in their complaint that John Swinburne was, “by the greatest number of legal votes cast at such election duly and legally elected mayor of said city of Albany for the term of two years to commence on the first Tuesday of May, 1882.” In bringing this action, it is assumed, the plaintiffs have knowledge of the existence of certain facts, which will make good this allegation of their complaint, and overthrow the official canvass and declaration of the result. Of the particulars upon which this claim is founded the defendant swears he is ignorant, and he therefore moves the court that such particulars should be furnished. Why should this request be denied 1 The decisions justify the motion. The court can readily see the importance of theimpartation of the information sought, and the plain tiffs concede its propriety by the facts stated in the opposing affidavit. Let us then examine the reasons urged upon the motion in opposition.

First. It is said that by proceedings' instituted before the recorder of the city, the evidence in which has been published in the newspapers, the defendant has knowledge of what the claims of the plaintiffs are.

This, no doubt, is to a certain extent true, but learned counsel understand perfectly well that a defendant in an action, no matter how well he supposes himself to be informed of the circumstances of his adversaries’ claim, is entitled to a formal statement of the particulars to and by which he shall be confined and bound upon the trial, and that without the service of such statement in the manner prescribed by law, he is liable to be surprised.

Second. It is urged that many and grave frauds were perpetrated in the interest of the defendant at the charter election, to the existence of which Dr. Swinburne deposes upon information and belief, and thus adds, it is his belief that the defendant has a great deal fuller, and more accurate knowledge and information than I or my counsel have.’ ’

This general and sweeping allegation may be true, and upon its truth or falsity no opinion is expressed, but in the face of the defendant’s sworn affidavit of merits, and of his entire ignorance of the grounds of the plaintiffs’ procedure, learned counsel will hardly pretend that a court, administering justice according to the forms of law, would be justified in rejecting the application of the defendant upon any such assumption' as the plaintiffs’ affidavits set up.

Third. It is contended that- the plaintiffs have not as yet obtained information of all the facts which they hope to prove upon the trial to establish their claim, but to the extent of the knowledge they possess, they are willing to furnish and do furnish particulars, by a bill tendered upon the argument, and will also furnish; information of other facts as rapidly as they are ascertained.

There is a practical difficulty in the case growing out of this position, but the rule giving the right to a bill of particulars being conceded, it is not seen how the commencement of an action in advance of knowledge can abrogate it. The defendant is in law entitled to know the particulars of the plaintiffs’ claim to guard him against surprise, and if his application to be thus informed can be defeated' by his opponents’ want of knowledge, the rule of law will be substantially overthrown.

Neither on the other hand would it be just to the plaintiffs to require a bill of particulars to be now furnished, which shall be complete and binding in every particular. The defendant is entitled to the order which he asks, but such order should contain a provision giving the plaintiffs a right to move the court for leave to serve other and additional bills upon such terms as to the court, hearing such applications, may seem just and proper. This provision as to future applications to serve additional bills of particulars is to be inserted because the court cannot now, in advance of an application to amend or extend a bill of particulars, determine the propriety and the terms thereof.

Fourth. Upon the argument of this motion, the plaintiffs’ counsel served upon the defendant’s attorneys, what they claimed to be a full and sufficient bill of particulars, and therefore it is urged that this motion should be denied.

A denial of the motion upon that ground, and an adjudication that the bill served upon the motion is sufficient, would be a decision of a question substantially nnai’gned, for the reason that there was no time during the argument for defendant’s counsel to examine it and discuss its merits.. There can be no objection, however, to direct, by the order to be entered, if the plaintiffs so desire, that such bill of particulars delivered upon the motion shall be deemed to be their bill of particulars served in compliance with such order. This provision will give to the plaintiffs the benefit of the service made, and will not preclude the defendant from taking such further or other action thereon as he may be advised.

The results of my deliberation upon this motion are, that the application to make the complaint more definite and certain is denied, and the application fora bill of particulars is granted. The order requiring such bill of particulars, however, is to contain the provisions indicated in this opinion. The costs of the motion will abide the event of the action.

The defendant thereafter moved, beiore the same justice, at the Ulster special term, for a stay of proceedings, pending an appeal by defendant to the general term, from the order entered upon the foregoing decision.

The following decision was rendered upon such motion.

B. Countryman and E. J. Meegan, for the motion.

A. S. Draper, opposed.

Westbrook, J. In May last, the defendant applied in this action to have the complaint therein made more definite and certain, and for a bill of particulars of the plaintiffs’ claim. The grounds of sneh motion were these : The official canvass of the votes cast for the office of mayor of the city of Albany, at the charter election held on the second Tuesday of April last, declared that the defendant, Michael N. Nolan, had Ideen elected mayor of said city, for the term of two years from the first Tuesday in May, 1882, by a majority of one hundred and eighteen votes over the relator, John Swinburne. The defendant qualified as mayor, and proceeded to discharge its duties on the said first Tuesday of May, 1882. On that day, this action was commenced to obtain the possession of the office for the relator, the complaint, which with the summons was then served, averring in general terms, upon information and belief, that the defendant, at such charter election, held on the second Tuesday of April, 1882, had, by the greatest number of legal votes cast for the office of mayor of said city of Albany, been duly elected to such office. The defendant, who claimed to hold the office by the official count and canvass, averring that he was entirely ignorant of the facts upon which the plaintiffs relied to overturn such official count and canvass, moved this court, as has already been stated, for an order requiring the plaintiffs to make their complaint more definite and certain, by inserting therein the allegation of facts upon which they relied, and also for a bill of particulars of their claims in these respects.

This application was carefully considered, and the result was a denial of such motion as to the complaint, but as to the bill of particulars if was granted, with the qualifications and provisions which are contained in the order. To the opinion'written upon such motion reference is now made, for the reasons which induced the making of the order then entered; and of the soundness and correctness thereof, the judge who heard such motion, and the present also, entertains no doubt. An appeal, however, has been taken from such order, and upon all the papers used upon the previous motion, including1 an_affidavit of merits made by the defendant, and also upon an affidavit of his counsel (Judge Countryman), who deposes that such appeal “is brought and will be presented in good faith to an early decision, and deponent is of opinion that there is reasonable ground for such appeal,” a motion is now made to stay all proceedings in the action, pending such appeal. Should such stay be granted ?

In answering the question just propounded, the court is embarrassed by the consideration, that while its own judgment upon the merits of such appeal is clear, it has oftentimes found its clearest and most conscientious conclusions overturned by the tribunals whose province is that of review. A striking instance of that can be found in the decision which was recently made in favor of the present relator, by the judge writing this opinion, in regard to the professorship in the Albany medical college, which was not sustained either at general term, or in the court of appeals, and yet in that proceeding his judgment and convictions were just as clear and free from doubt as they are in regard to the present one. The fact is, that in regard to questions not absolutely settled by the court of last resort, there is always so much doubt as to how they will be there determined, that it is, as a general rule, safer and better for the tribunal which hears them in the first instance to give an 'opportunity for review, before proceeding to enforce conclusions which may be overturned. Certainly, this court has no desire to continue the usurpation of an office for a single day, but however, clear the convictions of the relator and of his friends may be, that the defendant is guilty of such an usurpation, it is manifest, that at this stage of the controversy, no court can, with any propriety, act upon any such assumption. The defendant holds the office of mayor of the city of Albany by a title, prima facie complete, and though such title may be overturned by proof given upon a trial, yet in the face of the defendant’s formal affidavit of merits, it would be exceedingly injudicious, upon ex parte affidavits charging fraud, for a court to close the ordinary avenues for the attainment of justice, and refuse to a party the usual stay to review an adverse decision.

The precise question which the appeal involves— the right of the defendant, in an action of this character, to have embodied in the complaint the alleged facts upon which an official canvass of the votes cast for a public office is to be overturned—has never been directly passed upon by the court of appeals. It is true, that the form of complaint adopted in this case is the one in general use, and has, upon demurrer, been held good (People ex rel. Crane v. Ryder, 12 N. Y. 433). In Tilton v. Beecher (59 N. Y. 176, 182, 183), the point •was also somewhat discussed, and, though a motion to make the complaint more definite and certain had not been made, the propriety of such a course was considered and an adverse conclusion intimated. But in no case to which my attention has been directed, has it been formally decided that the relief sought by the motion, of the defendant cannot be granted. In view of the importance of this case, the unsettled condition of the practice, the need of the pleadings being passed upon previous to a trial, and the affidavit of most reputable counsel, that the appeal “is brought and will be prosecuted in good faith to an early decision,” and that he “ is of opinion that there is reasonable ground for such appeal,” should not the stay asked for be granted ?

A general term of this court will be held on the first Tuesday in September next, at which the appeal can be heard, and a decision rendered in time to dispose of the case at the next regular circuit, or, if that be preferred, at an extraordinary circuit to be held in the fall. No hardship can result from such delay, as during the months of July and August the cause would not, probably, be tried, even though there was no stay.

In determining that this motion should be granted, the judge writing this opinion follows a precedent established by himself. In Morss v. Hasbrouck, an undertaking on appeal to the court of appeals was twice held to be defective, and two opinions, which are published, written. As to the correctness of his conclusions, the judge had not then, and has not now, the slightest doubt, and yet, upon the application of counsel, a stay pending an appeal was granted. In granting it the judge said: 1 ‘ On the question involved in the motion, the judge whd has heard it entertains no doubt. He knows, however, the fallibility of human judgment, and the importance of having all doubt solved upon a point of practice of continual recurrence.” These remarks are exactly applicable now. The judge, personally, has no doubt. Experience, however, has taught him, when dealing with the nice problems q¿f the law, to distrust the finality of his judgment when it is to be passed upon by that of others. He knows, too, the need of having the present question definitely settled. As no harm can result to either public or private interests therefrom, the stay asked for is granted. 
      
      
        Ante, pages 407, 417.
     