and 124 New York State Reporter

The plaintiffs are residents of the county of New York, and the defendant a resident of the county of Niagara. The contract was made at Niagara, and was to be there performed, and this fact is to be considered in determining the place of trial. Rule 48 of the General Rules of Practice. While many of the witnesses who, it is stated in the affidavits, are to be called upon the trial, could quite clearly give no competent evidence, I am satisfied that a majority of the witnesses whose evidence will be material reside in the county of Niagara or an adjoining county, and, considering the place where the contract was made and was to be performed, I think the motion should have been granted.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

OATMAN v. WATROUS et al.

(Supreme Court, Appellate Division, First Department. December 9, 1904.) 1. BILL OF PARTICULARS-WHEn Required.

Where the complaint in an action against executors to recover for wearing apparel furnished testator's wife alleged that plaintiff furnished the wearing apparel on information and belief that the woman was the wife of testator, defendants asking for a bill of particulars were entitled to be informed with respect to whether the alleged marriage was or was not a ceremonial one, together with the dates and places where the credit of the testator was specifically pledged to plaintiff for the goods. 2. SAME-ORDer-RequisitES.

An order directing plaintiff to furnish a bill of particulars granted under Code Civ. Proc. § 531, should state that, unless the particulars called for are furnished, plaintiff will be precluded from giving evidence on the trial, and should not direct the giving of the particulars in any event.

Appeal from Special Term, New York County.

Action by Rachel E. Oatman against Harry W. Watrous and another, executors of Walter W. Watrous, deceased. From an order directing plaintiff to furnish a bill of particulars, she appeals. Modified.

The complaint in the action alleged that plaintiff furnished. wearing apparel to Mrs. Katherine Watrous, sometimes known as Katherine Ballou, and further alleged on information and belief that Katherine Watrous was the wife of the testator.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Franklin Pierce, for appellant.

D. P. Cobb, for respondents.

O'BRIEN, J. The plaintiff brought an action to recover from the executors of Walter W. Watrous, deceased, for dresses and wearing apparel furnished, as alleged, to his wife. The defendants demanded, in addition to the facts and items set forth in the complaint, a bill of particulars, and it is from the order made at Spe

cial Term directing the plaintiff to serve upon the defendants such a bill that the plaintiff appeals.

The terms of the order are drastic, but considering the fact that defendants are executors, necessarily unfamiliar with the details of the transactions, we think that, to the extent that the plaintiff can furnish particulars, she should be required to do so. As to many of the items, it is evident that more definite information can be given as to the name or kind of the garment, and the materials of which it was made. So, too, the defendants are entitled to be informed with respect to whether the alleged marriage between the one to whom the articles were furnished and the defendants' testator was or was not a ceremonial one; and the dates and places where the credit of said Walter W. Watrous was specifically pledged to the plaintiff for said goods should be given, as required by the third paragraph of the order. It may be that a motion to make the complaint more definite and certain would have obviated the uncertainty as to the theory upon which the plaintiff is proceeding to hold the defendants liable, but the same end will be reached if the particulars are furnished as directed.

In order to prevent surprise upon the trial, the plaintiff should be required to make as full a disclosure to defendants of the facts upon which her claim is based as she is able; and the question of the extent to which she may be enabled to give all the particulars directed can only be determined when, after furnishing the bill of particulars, the question will arise either upon a motion for a further bill of particulars, or upon the trial of the action.

We think, however, that, pursuant to section 531 of the Code of Civil Procedure, the form of the order should be modified so that, instead of directing the particulars in any event to be furnished, which may be impracticable or impossible, there should be incorporated in the order a provision that upon failure to give such particulars the plaintiff will be precluded from giving evidence upon the trial. As the order stands, the failure to obey the direction of the court to furnish the information would seemingly leave the plaintiff in a position to be proceeded against as for a contempt, whereas the Code itself prescribed the penalty that, unless the particulars are furnished, the party refusing to furnish them. shall be precluded from giving evidence of the account upon the

trial.

The order should be modified accordingly, and, as so modified, should be affirmed, without costs. All concur.

In re FIRST NAT. BANK OF EARLVILLE.

ELLIS v. RUGG et al.

(Supreme Court, Appellate Division, Third Department. November 16, 1904.) 1. SUPPLEMENTARY PROCEEDINGS-AFFIDAVITS.

An affidavit for the examination of a bank as a third person in supplementary proceedings, alleging that the judgment debtors had personal property in the custody of the bank exceeding $10 in value, on information and belief, without stating the sources of affiant's information or the

and 124 New York State Reporter

grounds of his belief, and alleging substantially only that the cashier of the bank had made statements to affiant from which he believes that the bank had such property, but failing to disclose what the cashier said to affiant, was insufficient to sustain an order for examination.

2. SAME RIGHT TO OPPOSE.

Where an order for the examination of a bank in supplementary pro ceedings enjoined the bank from paying over or delivering the judgment debtors' property to them, and from interfering with such property, such debtors are entitled to oppose the order.

Appeal from Chenango County Court.

Supplementary proceedings, on the application of Gilbert L. Ellis against Adelbert Rugg and another, for the examination of the First National Bank of Earlville as a third person alleged to have moneys and credits belonging to the defendants. From an order denying a motion to vacate an order requiring the bank to appear and answer before a referee, the judgment debtors appeal. Reversed.

The judgment creditor, Ellis, recovered judgment against Adelbert and Mary Rugg on October 24, 1898, for $838.75 debt and $18.05 costs. A transcript thereof was duly filed and docketed in Chenango county November 14, 1898 : and execution issued same day. On November 23, 1903, on the application of Ellis, an order was granted in supplementary proceedings against such debtor, by the county judge of that county, to examine the First National Bank of Earlville as a person having property belonging to such debtors, under section 2441 of the Code. A motion was subsequently made before such judge to vacate that order, and a decision made by him to vacate it, but before it was entered, and on March 1, 1904, such judge made a second order requiring the bank to appear on March 5th before a referee therein named, and through its cashier, Guy H. Clark, be examined under oath concerning any debt or property, etc., it held belonging to said debtors, as provided by said section 2441. Such order also enjoins the bank and the said debtors from disposing of or in any manner interfering with the property or debt concerning which the bank was required to be examined "until further direction in the premises." On March 5, 1904, such county judge, on the application of said judg ment debtors, granted an order that said Ellis show cause before him at chambers on March 7th why such order of March 1st should not be dismissed on several grounds therein stated. On March 14th an order was made by such county judge denying the motion to vacate the order of March 1st, and amending the same by adding to it language making it clear that the injunetion in such order was not intended to affect any property other than that on deposit, or in its control, to the credit of the said debtors or either of them. or in which they or either of them have an interest. From the order of March 14th so refusing to vacate the order of March 1st this appeal is taken.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

George P. Pudney, for appellants.

Dayton F. Smith (C. A. Hitchcock, of counsel), for respondent.

PARKER, P. J. One of the grounds upon which the judgment debtors applied to the county judge to vacate the order of March 1st was that he had no jurisdiction to make it, because of the insufficiency of the affidavit upon which it was granted. It was granted upon the affidavit of E. W. Cushman, made February 24. 1904, and his statement therein that the bank had personal property of the judgment debtors exceeding $10 in value is made entirely upon information and belief, and does not state the "sources of his

information and grounds of his belief." Substantially it states no more than that the cashier of such bank, who had charge of its business, made statements to him from which he believes that the bank had such property. What the cashier said to him is not disclosed. Not a single fact is stated which would tend, if true, to convince the judge that the bank had any such property-merely that from what the cashier said to him the affiant thinks it had. This was not "competent evidence" which should "satisfy a judge,' and hence the applicant was not entitled to the order. "The opinion of the affiant is not a fact upon which the judge's conclusion. may be based." Duparquet v. Fairchild, 49 Hun, 471, 472, 2 N. Y. Supp. 264; First National Bank of Hoosick Falls v. Wallace, 4 App. Div. 382, 384, 38 N. Y. Supp. 851; Matter of Parrish, 28 App. Div. 22, 50 N. Y. Supp. 735; Delafield v. Armsby Co., 62 App. Div. 262, 71 N. Y. Supp. 14; Citizens' National Bank of Towanda v. Shaw, 46 Hun, 589. And particularly should such an affidavit be held insufficient to sustain an injunction against the disposal of one's property.

It is claimed that the judgment debtors have no standing in court to oppose the order in question. But the order enjoins the bank. from paying over or delivering to them their property, and it even enjoins them from interfering with such property. For that reason they have the right to challenge the sufficiency of the proof upon which the county judge assumed to grant the order.

For these reasons, without discussing the further grounds urged by the judgment debtors against the jurisdiction of the county judge, the order appealed from must be reversed, with costs of this appeal, and the order of March 1st should be vacated with $10 costs of that motion. All concur.

MCLAUGHLIN v. HAMMERSTEIN.

(Supreme Court, Appellate Division, First Department. December 9, 1904.)

1. THEATRICAL CONTRACTS-TERMINATION.

Where plaintiff contracted to perform a particular "Comedy Act," known as "Marcoe Twins," at defendant's theater, which defendant had previously seen plaintiff perform, and the performance as presented under the contract was materially different from that previously given, by which the comedy was known, and with respect to which defendant contracted, defendant was entitled to terminate the contract.

Patterson and Hatch, JJ., dissenting.

Appeal from Trial Term, New York County.

Action by James McLaughlin against Oscar Hammerstein. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Nathaniel Cohen, for appellant.

Edward Hymes, for respondent.

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LAUGHLIN, J. The plaintiff is a vaudeville performer, and the defendant is a theatrical manager. The defendant engaged the plaintiff to produce his specialty known as "Comedy Act" or "Marcoe Twins" at the Victoria Theater for a period of eight weeks at a salary of $225 per week. The performance of the contract for the first week was waived by consent. The plaintiff and another appeared in the act at the Victoria during the second week, at the expiration of which they were discharged on the ground that the act as given by them was an incompetent performance. The action. was for a wrongful discharge, and the plaintiff has recovered the difference between the contract price for the remaining six weeks and his earnings in performing at other theaters in the meantime. The contract was negotiated through a theatrical agency while the plaintiff was in Europe. It was prepared in duplicate, one of which was signed by the defendant. The two were then forwarded to the plaintiff, who erased from each a clause to the effect that the defendant reserved the right to cancel the contract at will "during or after a single performance of an incompetent person," or "in the event of a performer becoming careless or indifferent about his work." The plaintiff then retained the duplicate signed by the defendant, and signed and mailed the other to the theatrical agency, inclosing with it a letter asking to be immediately notified whether the defendant consented to the change, and saying, in substance, that otherwise he would not enter into the contract. The matter was not further brought to the attention of the defendant by the theatrical agent. The plaintiff, receiving no cablegram, assumed that the change was satisfactory to the defendant, and came to New York and entered upon the performance of the contract, as already stated.

The defendant set up as a defense, among other things, that the performance was incompetent. The evidence tending to support this allegation was given by the defendant and his son, who was associated in business with him as manager. The contract gave no description of the performance to be presented by the plaintiff, other than the designation of the act as already stated. The plaintiff had for many years been presenting his specialty known by these names, and some six or seven years before this contract was negotiated he had presented the act at Koster & Bial's Theater, in the ownership or management of which the defendant was interested. The defendant and his son had seen the performance as there given, which was by the plaintiff and a very small dwarf, named "Ulps." The defendant contends that at the time the contract was made he was informed by the theatrical agent, and that the plaintiff afterwards admitted, that Ulps was still performing with him that it was the understanding and intention of the parties that the act should be performed by the plaintiff and Ulps; and furthermore that it should be the same act, in all material respects, as that theretofore presented by them, which was known to the defendant. Ulps did not take part in the performance of the act as presented by the plaintiff at the Victoria Theater. Whether or not the defendant was entitled to have Ulps appear with the plaintiff