Nieury v. O'Hara , 1 Barb. 484 ( 1847 )

Harris, J.

The substance of the plaintiff’s bill is that he has been sued by the defendant in an action of assumpsit; that although he has diligently invoked the aid of the court in which the suit is brought, he has been unable to ascertain for what he has been sued, and therefore, that he may know beforehand, he asks a discovery of the plaintiff’s real cause of action. In other words, he asks this court to furnish him with the means of obtaining from the defendant, what the superior court refused to allow him, a further bill of the particulars of the plaintiff’s demand. It is not easy to see why .the court, in which the action is pending, refused such further bill; but such refusal can form no ground for the interference of this court. The bill shows no right to any discoveiy. It sets forth no matter material to a defence at law, but merely seeks a discovery of the grounds of the suit at law. It is a well settled rule that to maintain a bill of discovery in aid of a defence at law, the plaintiff in the bill must state a case, which if established, would constitute a good defence at law; and then state some fact material to such defence, which he wishes to establish by the confession of the defendant. (Story's Eq. Pl. §§319, 325. Newkirk v. Willett, 2 Caines' Ca. in Er. 296. Williams v. Harden, 1 Barb. Ch. Rep. 298.)

But I do not understand the plaintiff as insisting upon a discovery of any particular state of facts, which may be used in establishing a defence to the action at law. On the contrary, he asks for a discovery of “the real and true particulars of the plaintiff’s claim or demand,” so that if it shall appear upon obtaining such discovery, that both suits are in fact brought for the same cause of action, he may avail himself of that fact, either by a plea or a motion to compel the defendant to elect which of the actions he will prosecute. Or, if it shall appear that the two suits aré brought upon different causes of action, that then he may prepare himself to disprove the claim made against him. In short, it is a mere fishing bill, the sole object of which is to ascertain the grounds upon which the defendant has thought fit to commence an action at law. To sustain such a bill, would be going greatly beyond the limits within which courts of equity have confined themselves, in granting a discovery to aid the prosecution or defence of an action at law. The motion to dissolve the injunction must, therefore, be granted with costs.^(a)

(a) See Deas v. Harvie, (2 Barb. Ch Rep. 448.)