Dwight v. Germania Insurance , 29 N.Y. Sup. Ct. 167 ( 1880 )

Learned, P. J.:

No question is made on this appeal as to the form of the order; or as to its details.

After the elaborate discussion of the subject in Tilton v. Beecher (59 N. Y., 176), it must be considered as settled, that the court has the power, in cases of this nature, to order a bill of particulars. But it is urged by the defendants that the defense, of which particulars are ordered, is not a “ claim,” within the meaning of section 531 of the New Code. Without discussing the exact meaning of that word, we think that the plain scope of the opinion in the case above cited, includes a defense, though it be not strictly a “ claim.” Such was the view taken by the court in Orvis v. Dana (1 Abb. New Cas., 268), reported under the title of Orvis v. Jennings (6 Daly, 447). This is the doctrine in England. (Marshall v. Emperor Life Ass. Soc., L. R., 1 Q. B., 35.)

Next, as to the question whether a case has been made entitling the plaintiff's to the order. The defendants aver that Dwight, in his answers to questions, made on the application to them for insurance, said, that he had not made application for insurance, which application had not led to insurance. And the defendants aver that he had made such application to companies unknown to them.' Now it is plainly reasonable that the defendants should specify the companies, in order that the plaintiffs may prepare to meet the alleged proof.

So again, the defendants aver that Dwight made false answers, in that he said that he had not.had bronchitis, or spitting of blood; while, in fact, he had had these diseases. Now it is true that the affidavit of the plaintiffs used on this motion is not quite as full as it might be. It does not deny that the plaintiffs have full knowledge of the times and places when Dwight had bronchitis and spit blood. It only denies a knowledge of the times and places when .and where the defendant expects to prove that allegation. It is, therefore, open to the criticism made by the defendant, that the ■plaintiffs may have actual knowledge of sufficient facts to show them the particulars of the proposed offense. No allegations, liow■evor, are made in the opposing affidavits, that the facts in this particular are known to the plaintiffs. And we are inclined, therefore, to consider the moving affidavits sufficient. And, in this view, it seems to be only just and fair that some particularity should be given to the defense. The plaintiffs ought to know, with some reasonable certainty, at what times and in what places the deceased is claimed to have have had these ailments. (See Marshall v. Emperor Life, ut supra.)

An important argument, however, on the part of the defendants, is that the evidence on which they rely as to the existence of these .ailments consists, so far as they are advised at present, of oral and written statements of said Dwight, which statements do not specify the precise times and places. A similar argument was made in the case of Tilton v. Beecher, ut supra. And the Court of Appeals then said that a court would not order a bill of particulars “ in ■such form as to exclude evidence of general confessions.” That -court did not indicate how this was to be done; but it certainly seems to be important that general confessions should not be excluded. The order may therefore be modified by adding a clause that neither the bill of particulars nor anything in the order should prevent the defendants from giving evidence of any declarations or statements, oral or written, made by said Dwight, of his having had said ailments, which declarations or statements are general as to-time and place.

As thus modified the order should be affirmed, and the costs of this appeal and printing disbursements should abide the event.

Present — Learned, P. J., and Bookes, J.; Martin, J., taking no part.

Orders affirmed as modified; $10 costs and disbursements to abide the event;

order to be settled before Learned, P. J.