Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. MERWIN, J. (dissenting): I think that the appeal should not in any respect prevail. Assuming that the Supreme Court judgment was an adjudication binding on the parties, the Surrogate's Court, under the circumstances shown, had the right, under its power to control the conduct of the executors, to require them to make further investigation to a reasonable extent, to the end that if information was obtained that White or any descendants of his were alive, proper steps could be taken to obtain a modification of the judgment. Order, so far as it authorized the expenditure of $5,000 to ascertain whether Ansel White, Jr., died before the testator, without issue, reversed, with ten dollars costs and disbursements to be paid out of the estate. JESSIE H. BENDER, Respondent, v. HARRY H. BENDER, as Admin- The ignorance of an administrator as to whether his intestate owed a debt evidenced by a written admission of such indebtedness by the deceased, does not entitle him in an action brought to collect the same to a bill of particulars of the circumstances out of which the indebtedness arose. The effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim, and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars will not be ordered. Where a motion for a bill of particulars is evidently made for the purpose of ascertaining whether by means thereof some defense may not be discovered, of which at the time the moving party has neither knowledge nor information, a bill of particulars will not be ordered. Where an action is brought upon an executed sealed instrument, by which the defendant's intestate was estopped from denying the consideration of the instrument sued upon, his personal representative is likewise estopped from denying the same. APPEAL by the defendant, Harry H. Bender, as administrator, etc., of Franklin H. Bender, deceased, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of April, 1895, denying the defendant's motion for a bill of particulars. Robert G. Scherer, for the appellant. Marcus T. Hun, for the respondent. Hun.] FURSMAN, J.: THIRD DEPARTMENT, JULY TERM, 1895. This action is brought upon a sealed instrument, a copy of which is fully set out in the complaint. The instrument is signed by the defendant's intestate. In it he acknowledges an indebtedness of $1,000 to the plaintiff's assignor, and assigns to him sufficient of the moneys or property to which he may be entitled out of his father's estate at his death, to pay that sum, with interest, and directs the executors or administrators (as the case may be) to pay the same and charge such payment against his portion of such estate. The complaint avers the death of the father leaving a last will, and that the portion of his estate bequeathed to the maker of the instrument is more than sufficient to pay the claim represented thereby. The maker of this instrument is dead and the defendant is his administrator. Before answering, the defendant moved for a bill of particulars, which was denied, and this appeal is from the order denying such motion. The motion was made upon the complaint and upon an affidavit of the defendant which sets forth that he intends to defend the action, but is wholly ignorant of the particulars of the claim alleged in the complaint and has no means of acquiring knowledge thereof sufficient to enable him to answer. There is nothing whatever stated in this affidavit tending to show that the defendant supposes there is any defense to the cause of action set forth in the complaint. The paper upon which the action is brought is fully set forth in the complaint. It in terms confesses an indebtedness and is under seal. The mere ignorance of an administrator as to whether his intestate owed a debt .evidenced by a written admission of the deceased does not entitle him to a bill of particulars of the circumstances out of which the indebtedness arose. (Fry v. Manhattan Trust Company, 53 N. Y. St. Repr. 566; Husson v. Oppenheimer, 45 id. 618, opinion of PRATT, J.; Mertage v. Bennett, 39 id. 367.) There is no pretense in these papers that there is any defense to the cause of action set out in the complaint. This motion is evidently an attempt on the part of the defendant to ascertain whether, by means of a bill of particulars, some defense may not be discovered of which, at this time, the defendant has neither knowledge nor information. This is not the office of a bill of particulars. The HUN-VOL. LXXXVIII. 57 THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim; and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars is never compelled. Moreover, the defendant's intestate was estopped by his seal to deny consideration of the instrument sued upon, and his personal representative is likewise estopped. (Talbert v. Storum, 50 N. Y. St. Repr. 267, see page 269.) The order should be affirmed, with ten dollars costs and printing disbursements. PUTNAM, J., concurred; HERRICK, J., not acting. Order affirmed, with ten dollars costs and disbursements. WILLIAM W. VAN KEUREN, as Executor, etc., of RACHEL VAN KEUREN, Deceased, Appellant, v. PETER E. VAN KEUREN, Respondent. Decision of the Special Term on conflicting affidavits, not disturbed on appeal. Upon a motion made by the plaintiff in an action to add to and correct the judgment roll therein, the plaintiff's affidavit tended to show that the defendant, upon the granting of a nonsuit, in open court waived all claims except as provided in the will of the plaintiff's testatrix. The minutes of the court and extracts from the stenographer's minutes also tended to show such a waiver. The defendant's affidavit alleged that the minutes of the court did not contain all that took place at the trial; that the waiver he made was only of the demands set up in the answer, and not of the cause of action for the enforcement of which a prior suit of his against the plaintiff's testatrix and another had been brought. The motion was denied. Held, that the General Term would not disturb the conclusion reached by the Special Term on conflicting affidavits. APPEAL by the plaintiff, William W. Van Keuren, as executor, etc., of Rachel Van Keuren, deceased, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 11th day of March, 1895, denying the plaintiff's motion to correct the judgment roll in the action. Hun.] THIRD DEPARTMENT, JULY TERM, 1895. 0. P. Carpenter and D. M. De Witt, for the appellant. G. R. Adams, for the respondent. PUTNAM, P. J.: The affidavits submitted to the court below were conflicting. Those read by the plaintiff tended to show that defendant, on the trial in the County Court, on the motion for a nonsuit being granted, in open court, waived all claims except as provided in the will of deceased. The minutes of the court and extracts from the stenographer's minutes also tended to show such a waiver. But defendant claimed that the minutes of the court did not contain all that took place on the trial. That the waiver he made was only of the demands set up in the answer, and not of the cause of action for which the suit of Peter E. Van Keuren against Rachel Van Keuren and another had been brought. In his affidavit for defendant Mr. Adams says, in reference to the waiver made at the time the motion for a nonsuit was granted: "That deponent expressly stated to the court, when the nonsuit was granted, that the defendant, by asking for the nonsuit, did waive the claims in the answer in the action, and the nonsuit would have the effect of a waiver, as there was a bar by Statute of Limitations for the commencement of a new action thereon. "That deponent did not, by word or act, consent or say that the defendant waived anything, or claims further than as above stated, and did not intend to waive any other cause of action.” The court below probably relied upon the statement of the transaction in court, when the complaint was dismissed, made by Mr. Adams. Such statement was the more probable one. It was probable that on granting the motion for a nonsuit the learned county judge should suggest a waiver by defendant of his counterclaims set up in the answer. It would have been an unusual proceeding for the judge, as a condition of dismissing the complaint, to require the defendant to waive claims not set up in the pleadings. We see no reason for overruling the conclusion reached by the court below on the conflicting affidavits. The order should be affirmed, with ten dollars costs and disbursements. HERRICK, J., concurred; MAYHAM, P. J., not acting. Order affirmed, with ten dollars costs and disbursements. |