Schmitt v. Mutual Reserve Life Ins. ( 1903 )

BLANCHARD, J.

The moving affidavits show sufficient grounds for an order directing a bill of particulars. Dwight v. Germania Life Ins. Co., 22 Hun, 167; Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319, 76 N. Y. Supp. 671. The order, however, seems too strict iii its directions. It is conceivable that certain of the facts regarding the transactions upon which the plaintiff claims a waiver by the defendant are of so general a nature that the plaintiff cannot in every instance give the name of the particular officer of the defendant to whom the information has been conveyed, nor specify the time and place of each transaction. The order should provide, therefore, that if the plaintiff shall declare under oath that he is unable to give the name of the particular officer, agent or employé of defendant to whom the information aforesaid is claimed to have been given, that said plaintiff be permitted, instead of giving such name, to give the description of such officer, agent, or employé, or such other facts and circumstances tending to establish his or their identity as will serve to enable defendant to identify such officer, agent, or employé.

Order affirmed, as modified, without costs of this appeal to either party. All concur.