Misc.] Surrogate's Court, New York County, March, 1921.

to start a codicil with the words "Add to my will " and continuing on the back, we have a "natural and consecutive method of reading." There need be no turning back; the sense is connected and continuous.

There being no testimony but that the document was, when executed, in the condition it now is, it is presumed that if any alterations or additions thereto. were made they antedated execution. Matter of Conway, 124 N. Y. 455, 466. And this view is strengthened by the fact that we are considering a holograph. Matter of Wood, 144 App. Div. 259.

The words on the front page, "N. Y., July 13, 1917," and the words on the back page, "It will be observed I have given to those I thought needed it most," as well as the verification before the notary, are to be stricken out as immaterial. Matter of Gibson, 128 App. Div. 769. The date of execution is to be taken as February 13, 1919. As thus construed I admit to probate the paper propounded. I am thus carrying out the undoubted wishes of the testator, a point of paramount importance, and one to which form, however devoutly to be wished for, must, whenever it is reasonably proper, yield.

Decreed accordingly.

Matter of the Estate of FRANCIS H. Ross, Deceased.

(Surrogate's Court, New York County, March, 1921.)

Bill of particulars when will be ordered to be furnished to proponent of a will- Surrogate's Court Code Civ. Pro. § 531.

Objection to the factum of the will and allegations of lack of testamentary capacity being practically a general denial of what proponent must prove to establish the will, such denial is not a "claim" under section 531 of the Code of Civil Pro

Surrogate's Court, New York City, March, 1921. [Vol. 115.

cedure, and does not warrant an order that contestants furnish a bill of particulars.

But where allegations of fraud and undue influence are sufficient to require contestants to furnish the name or names of those charged with exercising fraud or undue influence upon the testator or to state lack of knowledge in that respect, a bill of particulars will be ordered to be furnished to proponent, particularly where he swears that he has endeavored to obtain such information, and the will does not indicate with certainty who would be likely to exercise any fraud or undue influence.

APPLICATION in a probate proceeding requiring contestants to deliver a bill of particulars.

Hugo Wintner, for proponents.

Thomas J. O'Neill, for contestant.

COHALAN, S. This is an application to require the contestants in a probate proceeding to deliver a bill of particulars. The Code (§ 531) provides that the court may direct the delivery of a bill of particulars of the "claim" of either party. The word "claim " as used in this section has been defined in the case of a defendant to be "whatever is set up by him as a reason why the action may not be maintained against him. The claim of the defendant is that ground of fact which he alleges in his answer as the reason why judgment should not go against him. His claim, in the case, is the position he takes in his pleading, based upon the facts he sets up, and the law applied thereto, why he should go without day." Dwight v. Germania Life Insurance Co., 84 N. Y. 493, 504.

The first two objections to the factum of the will and the third objection alleging lack of testamentary capacity are practically a general denial of what the proponent must prove to establish the will. They merely assert a negative and do not set up any facts.

Misc.]

Surrogate's Court, New York County, March, 1921.

Such a denial is not a "claim " under section 531 of the Code of Civil Procedure, and does not warrant the ordering of a bill of particulars. The proponent knows what he has to prove to show due execution and he knows or ought to know just what proof he will be able to offer in that regard. If there is any doubt about the sufficiency of such proof, the proponent knows it or ought to know it, and to require a bill of such objections would serve no useful purpose.

On the issue of fraud and undue influence the contestants have the affirmative and the burden of proof. The pleading might of course be amplified by an application to make it more definite and certain, but I think the allegations of the fourth and fifth objections are sufficient to require the contestants to furnish the name or names of the person or persons charged with fraud or undue influence, or to state lack of knowledge in that respect. This is not compelling the contestants to furnish their evidence as in the case of Smidt v. Bailey, 132 App. Div. 176, where the complaint stated the name of the person charged with practicing the fraud and undue influence, and in which the court denied a bill as to all other items. Restricting the bill as above accords with the few decisions on the subject. Matter of Halloran, N. Y. L. J., April 29, 1916; Matter of Cramer, Id., Nov. 14, 1916; Matter of Brown, Id., Dec. 20, 1919; Matter of Emmons, Id., Jan. 8, 1920. In this case the proponent swears that he has endeavored to obtain this information and the will itself does not indicate with any degree of certainty who would be likely to exercise any fraud or undue influence. Application granted in part as indicated.

Application granted in part.

Supreme Court, March, 1921.

[Vol. 115,

J. FRIEDMAN & Co., INC., Plaintiff, v. AMALGAMATED CLOTHING WORKERS OF AMERICA, an Unincorporated Association; SIDNEY HILLMAN, Individually and as General President of the Amalgamated Clothing Workers of America et al., Defendants.

(Supreme Court, New York Special Term, March, 1921.)

Associations - unincorporated — actions against - pleading-injunctions — when motion for judgment on the pleadings granted Code Civ. Pro. § 1919.

-

In an action brought under section 1919 of the Code of Civil Procedure against the president of an unincorporated association on any cause of action upon which plaintiff may maintain such an action against all the associates, the court must find upon allegations and proof that all the members of the association are liable.

Where in such an action brought against one individually and as president of the "Amalgamated Clothing Workers of America" and against others individually and as officers, agents or employees of the organization, the complaint alleges "that all of the defendants herein have combined and conspired and agreed to carry out all of the aforementioned purposes by their acts and conduct," and that they are wronginstigating plaintiff's employees have caused a general strike against

fully and unlawfully

66

to cease work and
manufacturers of clothing in the city of New York and
are instigating persons to picket plaintiff's factories and co-
ercing
and intimidating plaintiff's employees," and a
particular allegation of the pleading gives irrefutable evidence
that the pleader intended the term "defendants" to apply to
the persons actually named as such in the caption, in contra-
distinction to the term "all members of the association" and
that when the pleader intended to designate the latter class he
so expressly denominated them, but there is no allegation that
all the members of the defendant association participated in
alleged overt acts or purposes of the association, authorized or
ratified the same or are chargeable with knowledge thereof, the
complaint, considering the allegations thereof as though they
were all to be considered as bearing solely upon the right to an

Misc.]

Supreme Court, March, 1921.

injunction, fails to state a cause of action and defendant's motion for judgment on the pleadings will be granted, with leave to plaintiff to plead over, if so advised.

MOTION for judgment on the pleadings.

Gordon, Tally & Gordon (Max D. Steuer and Harry A. Gordon, of counsel), for plaintiff.

Lowenthal & Szold (Samuel Seabury, of counsel), for Sidney Hillman, as president of Amalgamated Clothing Workers of America, and others.

S. John Block, for Abraham I. Shiplacoff and others.

BIJUR, J. This is a motion for judgment on the pleadings made on behalf of defendant "Sidney Hillman, individually, and as General President of the Amalgamated Clothing Workers of America," and also on behalf of certain other officials of that organization. The motion is directed particularly against the sufficiency of the complaint to charge the Amalgamated Clothing Workers of America as an unincorporated association in that it fails to allege a cause of action maintainable against all of its members. This point is based upon the fact that the action is brought against the association pursuant to the privilege accorded to the plaintiff by section 1919 of the Code of Civil Procedure which permits it to be maintained against the president or treasurer "upon any cause of action, for or upon which the plaintiff may maintain such an action against all the associates." It is well settled that where the action is so brought "the plaintiff must allege and prove, and the court must find, that all the members of the association were liable." McCabe v. Goodfellow, 133 N. Y. 89, 92; Schouten v. Alpine, 215 id. 225, 232; People ex rel. Solomon v.