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ADAMS v. HENDEL

June 16, 1939

ADAMS
v.
HENDEL et al.



The opinion of the court was delivered by: KALODNER

After plaintiff filed the complaint in his civil action, the defendants moved for a more definite statement. Disposition of the motion requires consideration of the nature of plaintiff's claim, and the manner in which it is set forth in the complaint.

Plaintiff is the receiver in possession of a national bank. Its former directors are the defendants.

 The complaint charges that

 (a) The bank acted in a fiduciary capacity for certain holders of bonds secured by mortgages originally created with bank funds. It was the bank's duty to collect and remit the interest to the bondholders. The defendants caused a loss to the bank in remitting interest out of the bank's own money when it had failed to collect that interest from the mortgagors, and also in paying out of the bank's funds various maintenance and other costs that should have been borne by the bondholders;

 (b) The defendants caused a loss to the bank by improvident loans made, without proper collateral and in amounts not warrented by the financial condition of the borrower, to a corporation organized by the defendant bank directors for real estate speculation, and in buying stock of that corporation;

 (c) The bank possessed trust powers and managed trust estates. Due to maladministration of the estates, chargeable to the defendants, courts imposed huge surcharges upon the bank. Thus the defendants caused the bank a further loss.

 In connection with (a) the complaint furnishes the dates, amounts and character of the allegedly improper advancements made by the defendants, together with data identifying the mortgages on which the advancements were made.

 In connection with (b) the complaint furnishes the dates and amounts of the loans made to the corporation.

 In connection with (c) the complaint furnishes the names of the trust estates, the nature of the fiduciary relationship, the name of the court imposing the surcharge, the dates of the surcharging decrees, the amounts of the surcharges and brief statements as to the grounds of surcharge in each case.

 By their motion, the defendants seek to elicit much additional data.

 With regard to (a), they desire that the plaintiff be ordered to give full details concerning the mortgage loans upon which the allegedly unlawful advancements were made -- details such as dates, names of borrowers, description of real estate, dates of default in interest payments, names of the bondholders to whom the alleged advances were made, and various other like details, including requests for some particularization as to some of the advances, such as payment for watchmen's services and insurance premiums.

 Plaintiff is not required to furnish such information under this rule, nor is it necessary that the data sought be set forth in the complaint.

 Although the defendants' motion is for a more definite statement, it is also in the nature of a motion for bill of particulars. Both are provided for in Rule 12(e) of the New Rules of Civil ...


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