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telligently frame a complaint in respect to matters other and additional to the question of the amount which he is entitled to recover.

[Ed. Note. For other cases, see Discovery, Cent. Dig. § 50; Dec. Dig. § 37.*]

Appeal from Special Term, New York County.

Action by Justin Mendelson against Moses Newborg and others. From an order vacating an order for the examination of two of the defendants before trial, plaintiff appeals. Reversed.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Jacob A. Cantor, of New York City, for appellant.

Gabriel I Lewis, of New York City, for respondents.

SCOTT, J. The plaintiff seeks to examine two of the defendants before trial, in order to enable him to frame his complaint. The allegations in the plaintiff's affidavit, which are not controverted, serve to show that he has a cause of action; but they also indicate that he is without sufficient information to intelligently frame a complaint. Ordinarily such an examination will not be allowed merely in order to enable the plaintiff to state the amount which he claims to be entitled to recover; but in the present case his lack of information does not appear to be limited to that item of his complaint.

Each application like the present must be determined upon its own facts, and with a view to facilitating, rather than retarding, the prompt and accurate formulation of the issues to be tried. The present action is not unlike the case considered by this court in Matter of Sands, 98 App. Div. 148, 90 N. Y. Supp. 749, wherein an order was sustained for an examination for the purpose of framing a complaint. Upon the authority of that case, we think that the order for examination should have been allowed to stand.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

In re OPPENHEIM.

(Supreme Court, Appellate Division, First Department.

February 7, 1913.)

ATTORNEY AND CLIENT (§ 61*)-DISBARMENT-REINSTATEMENT.

Where the referee, on petition by an attorney for a rehearing of the application to disbar him and for his reinstatement, found that the attorney was not guilty of the charges on which he was disbarred, and the representative of the Bar Association appearing before the referee approved his report, the court will reinstate the attorney.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 84; Dec. Dig. § 61.*]

In the matter of the application of Benjamin Oppenheim, an Attorney, for a rehearing of the application to disbar him, and for his reinstatement. Reinstatement ordered.

See, also, 146 App. Div. 775, 131 N. Y. Supp. 423.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

INGRAHAM, P. J. This proceeding came before the court on the petition of the respondent for a rehearing of the application to disbar him and for his reinstatement. The opinion of this court in the original disbarment proceeding (58 App. Div. 510, 69 N. Y. Supp. 524) contains a full statement of the facts. The matter was referred to the official referee, who has reported in favor of the application, and that the respondent should be reinstated.

The facts that have developed since the original application was heard are fully set forth in the report of the referee, and it is quite evident that the witnesses before the referee in the original proceeding are thoroughly discredited, and that a finding based upon their evidence should not be allowed to stand; and as the referee is now satisfied that, as an original proposition, the respondent was not guilty of the charges upon which he was disbarred, and as the representative of the Bar Association, who appeared before the referee, has approved the report of the referee, I think that we should, on his report, reinstate the respondent as an attorney and counselor at law.

It is so ordered. All concur.

EWEN v. HOEFER, et al.

(Supreme Court, Appellate Division, First Department. February 7, 1913.) Appeal from Special Term, New York County.

Action by John Ewen, as trustee in bankruptcy of Herman W. Hoefer, against Elizabeth M. F. Hoefer, otherwise known as Elizabeth M. Ochs, individually and as executrix of Maria Hackman, deceased, and another. From an order setting aside an order for the examination of a defendant before trial, plaintiff appeals. Reversed, and order for examination reinstated.

See, also, 139 N. Y. Supp. 1055. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Bennet & Cooley, of New York City (Elmer E. Cooley, of New York City, of counsel), for appellant.

Abraham M. Pariser, of New York City, for respondents.

PER CURIAM. The action is brought by the trustee in bankruptcy of Herman W. Hoefer to set aside certain conveyances, for an accounting of the rents, and for possession of the premises conveyed, on the ground that the said conveyances were made for the purpose of hindering, delaying, and defrauding creditors, pursuant to a secret agreement and conspiracy that the property should be held for and reconveyed to the bankrupt upon his request.

The complaint alleges that at the time said Hoefer made the transfer he was solvent, and that the effect of the said transfer was to make him insolvent and unable to pay his debts, and that the parties to the

said secret agreement, conspiracy, and fraudulent transfer were the defendants, Hoefer, Hackman and Ochs. Sufficient facts were presented by the moving papers to justify the order for the examination before trial.

The order appealed from should be reversed, with $10 costs and disbursements to the appellant, and the order for the examination reinstated, with $10 costs.

EWEN v. HOEFER et al.

(Supreme Court, Appellate Division, First Department.

February 7, 1913.)

APPEAL AND ERROR (§ 1180*)-EXAMINATION OF DEFENDANT STAY OF TRIAL. Where an order denying a motion to examine defendant before trial is reversed, an order denying a stay of proceedings until the examination is taken will also be reversed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46264631, 4658, 4659; Dec. Dig. § 1180.*]

Appeal from Special Term, New York County.

Action by John Ewen, as trustee in bankruptcy of Herman W. Hoefer, against Elizabeth M. F. Hoefer and others. From an order denying plaintiff's motion for a stay until a defendant could be examined before trial, plaintiff appeals. Reversed, and motion granted. See, also, 138 N. Y. Supp. 1115; 139 N. Y. Supp. 1054. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Bennet & Cooley, of New York City (Elmer E. Cooley, of New York City, of counsel), for appellant.

Abraham M. Pariser, of New York City, for respondents.

PER CURIAM. This court having reversed the order vacating an order for the examination before trial, this order denying a stay of proceedings until the taking of said examination should be reversed, with $10 costs and disbursements to the appellant and the motion granted, with $10 costs.

FURTHMANN v. FURTHMANN.

(Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. DIVORCE (§ 107*)—BILL OF PARTICULARS-ADULTERY.

In an action for divorce on the ground of adultery, a complaint which abounds with such phrases as "divers other men" and "divers other places," and which would permit plaintiff to offer proof to show adulteries committed anywhere, with any man, within two years, was so sweeping that it would be impossible to frame issues, and a motion for a bill of particulars should be granted.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 346-348; Dec. Dig. § 107.*]

2. DIVORCE (§ 107*)-MOTIONS-BILL OF PARTICULARS-EVIDENCE.

Where a motion asks for a bill of particulars, and that evidence be not admitted respecting matters concerning which plaintiff fails to give *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

particulars, the part of the motion as to the admission of testimony is premature.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 346-348; Dec. Dig. § 107.*]

Appeal from Special Term, New York County.

Action by Charles Furthmann against Gertrude Furthmann. From an order denying a motion for a bill of particulars, the defendant appeals. Reversed.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

James W. Osborne, of New York City, for appellant.
Abraham Levy, of New York City, for respondent.

SCOTT, J. The plaintiff sues for divorce upon the ground of adultery, by a complaint containing no less than 16 paragraphs setting forth alleged acts of adultery in the most sweeping and general terms. At a cursory glance the complaint appears to set forth names and places with considerable particularity, but it abounds with indefinite phrases, such as "divers other men" and "divers other places," so that, in effect, it would permit plaintiff to offer proof to show adulteries committed anywhere, with any man, and at any time within a period of two years. It is manifest that such a complaint as this affords no information to defendant as to what she will be called upon to meet, and that it would be quite impossible to frame issues which would certainly cover the matters to be tried. The purpose of granting a bill of particulars in a case like the present is, as has often been said, to define the issues which are to be tried, and unless plaintiff has drawn his complaint recklessly, and bases it only on suspicion, he must be able to state more definitely than he has done what charges against his wife he expects to support by proof.

[1] Indeed, his attempted denial of his ability to give further particulars is but half-hearted and far from convincing, and it is quite evident that his controlling reason is that stated in his affidavit to the effect that he is advised by his counsel that, because he expects to prove his charges by circumstantial evidence, he is "not obliged to furnish any of the details required by the defendant or her attorneys." This advice was doubtless based upon the case of Krauss v. Krauss, 73 App. Div. 509, 77 N. Y. Supp. 203, much relied on by respondent upon this appeal, and cited by the justice at Special Term as authority for the denial of the motion. The Krauss Case was very different from this. There was but one corespondent named, and the places at which the adultery was alleged to have been committed, evidently the successive residences of the co-respondent, were stated with particularity. All that was not stated was the particular day or days on which the adultery was committed. It was very apparent that the plaintiff expected to rely upon a continuous intimacy, accompanied by such circumstances as would justify the inference that the intimacy had been adulter

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ous. In such a case it would not be necessary for plaintiff to point out and prove the precise dates on which acts of adultery were committed, and therefore she was not required to specify them.

It may be in the present case that the plaintiff is honestly unable, and should not be required, to tie himself down quite so closely as defendant would have him do; yet it is entirely clear that she is entitled to much closer specifications of what she may be called upon to meet at the trial than is afforded by the complaint. The plaintiff has not been sufficiently frank and ingenuous with the court to enable us to say, in detail, how far he should be required to comply with the defendant's demand, or how much latitude of specification should be allowed him, in the interests of justice. We cannot accept his general statement that he cannot give with greater particularity the exact times when or places where the alleged acts of adultery were committed, in view of the very general charges in his complaint. If he cannot exactly specify, he can at least limit the range of his charges. Upon the papers before us, the best disposition of the motion will be to grant the motion as it is made, inserting in the order the provision, contemplated by the notice of motion, that in case the plaintiff has no knowledge, or is unable to give precise particulars, with reference to any of the matters as to which particulars are ordered, he shall so state under oath. Of course, he will be expected to make an honest attempt to comply. with the order, and must be prepared to satisfy the court as to his good faith.

[2] So much of the motion as asks that the plaintiff be precluded from offering proof respecting matters concerning which plaintiff fails to give particulars is premature. It will be time enough to consider that question when the bill of particulars has been furnished.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion granted to the extent above indicated, with $10 costs. All concur.

ABNER M. HARPER, Inc., v. CITY OF NEWBURGH.

(Supreme Court, Special Term, Orange County. February 15, 1913.) MUNICIPAL CORPORATIONS (§ 354*)-PUBLIC WORK - BIDS

LIEF.

- MISTAKE - RE

Plaintiff, intending to bid 90 cents per lineal foot for bluestone curbing and 65 cents for concrete curbing, put in a bid to defendant city in which the prices were transposed by mistake, and the city, without fraud, bad faith, or mutual mistake, accepted its bid for the stone curbing at 65 cents per lineal foot. Held, that plaintiff, under such circumstances and after the acceptance of its bid, was not entitled to a decree permitting it to rescind for mistake and recover its deposit.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. § 354.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 139 N.Y.S.-67

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