Cadwell v. Goodenough

It appears that the action was commenced in July, 1863 ; that issue was joined in August, 1863 ; that the action was referred to Hon. W. F. Allen, to hear and determine in November, 1863 ; that the plaintiff has given testimony on her own behalf upon several occasions, and the further trial of the cause stands over for the cross-examination of said plaintiff by the defendants. The order to show cause why a bill of particulars should not be fur*480nished, and in the meantime staying all proceedings, would not have been granted had these facts been presented to the judge who granted the order. There can be no necessity for a formal written bill of items, when the plaintiff, if she has not already upon the direct, upon her cross-examination can be compelled to disclose the nature of her claim with the nicest particularity.

It was held in Andrews agt. Cleveland (3 Wend. 43) that when a bill of particulars is applied for by a defendant after issue joined, it is a suspicious circumstance, and the officer granting the order should be well satisfied that the object of the party is not delay ; and he should require a good, excuse for the late application.

Assuming the court to have the power to order a bill of particulars after the issues have been referred to a referee to hear and determine, I am quite clear that it will not be exercised to interrupt a trial actually proceeding before him.

The motion must be denied, with $10 costs. The order staying proceedings is vacated.