Adams v. Coe , 119 N.Y.S. 1086 ( 1909 )

Goff, J.

Plaintiff has brought suit to recover possession of a mare, of which he claims to be the owner. Defendant, in his answer, alleges that he is the owner and sets up, as a separate defense, that plaintiff entrusted the mare to one Gibson for sale and “ clothed said Gibson with the indicia of ownership of said mare,” whereby he was induced to purchase her in the belief that she was the' property of Gibson. Defendant now appeals from an order for a bill of particulars by which he is directed to furnish plaintiff, together with other information, with “ a full statement of the acts of plaintiff or the facts constituting such indicia ”

The phrase “ clothed with indicia of ownership ” is a metaphorical expression of such uncertain meaning that it is clearly the duty of plaintiff’s attorney to inform himself as to the particulars of this defense before proceeding to trial, but the order which he has obtained requires a disclosure of evidentiary facts. In Smith v. Anderson, 126 App. Div. 24, 26, it appeared that defendant had pleaded a release and plaintiff had obtained an order for a bill of particulars “ of the specific words, acts and writings * * * constituting the release.” The order was modified so as to require defendant to state whether or not the release was express, and, if so, to set forth a copy thereof, and, if implied from acts, to set forth in general terms the nature of those acts.

Section 4 of the order appealed from is modified, so as to read as follows: “ If such ' indicia ’ were not in writing, a statement, general in terms, of the acts of plaintiff or the facts constituting such indicia” and, as so modified, affirmed, without costs, but with disbursements to the appellant.

Giegerich, I., concurs.

Lehman, J., votes for affirmance.

Order modified and, as so modified, affirmed, without costs, but with disbursements to appellant.