acts and circumstances of fraud and collusion in procuring the execution and publication of such instruments by a person or persons other than the respondent and a description of such person; also in what particulars the will and codicil were not executed in the manner required by the laws of the state of New York to constitute them or either of them valid instruments to pass an interest in the real estate of the testatrix. The plaintiff appeals from this order. The order, it will be noticed, requires the plaintiff to set forth, not the nature of her claim-because that is fully set out in the complaint -but all the evidence which she has tending to establish the truth of such claim. It is not the purpose of a bill of particulars to compel a party to furnish to his adversary the evidence upon which he relies. Before the will and codicil were admitted to probate, the respondent, or the one asking to have such instruments probated, had to satisfy the surrogate that the same were duly executed, and that the testatrix at the time she executed them was in all respects competent to make a will, and not under restraint. Code Civ. Proc. § 2623. The surrogate's decree admitting the same to probate presumptively establishes these facts. Section 2627. This presumption the plaintiff, in order to succeed, must overcome by proof; that is, by evidence which will satisfy the court that the allegations of the complaint in this respect are true. The respondent is fully advised by the complaint as to what the plaintiff claims, and this is all that he is entitled to. The rule seems to be well settled that where the pleadings specify the nature of the claim, as this complaint does, that is sufficient, and the party will not be required to disclose the evidence he has to establish the claim. Smith v. Anderson, 126 App. Div. 24, 110 N. Y. Supp. 191; Bennett v. Wardell, 43 Hun, 452; Hazard v. Birdsall, 61 Hun, 208, 16 N. Y. Supp. 30. The last case cited is directly in point. There the court held, as expressed in the headnote, that: "Where an action has been begun for the partition of real property, under section 1537 of the Code of Civil Procedure, the terms of which permit the plaintiffs to allege and establish that an apparent devise to third persons is void, and the plaintiffs allege that such a devise is void because of the testator's incompetency and of undue influence exerted upon him, a motion made by the defendant for a bill of particulars requiring the plaintiffs to state in what particular the execution of said will was defective, and also any par ticular or special act or false representation relied on as establishing undue influence will be denied." It would be manifestly unfair to the plaintiff to require her to inform the respondent what evidence she will introduce at the trial to establish the allegations of the complaint, unless the respondent were also required to inform her of the evidence he would introduce in answer thereto. If each party were required to furnish to his adversary before trial a statement of the evidence upon which he would rely, it would undoubtedly shorten the trial, and might in some cases materially aid the court in doing justice to them; but this is a subject for the consideration of the Legislature. There is now no provision of the statute which justifies the court in directing that such evidence be furnished, and, in the absence of a statute, the court ought The order appealed from, therefore, is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. INGRAHAM, LAUGHLIN, and CLARKE, JJ., concur. SCOTT, J., dissents. WILLIAM BERNARD v. FROMME. (Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. PLEADING (§§ 214, 218*)-ADMISSIONS BY DEMURRER. On demurrer, a complaint must be construed most favorably to the plaintiff, and its allegations taken as true. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534, 555; Dec. Dig. §§ 214, 218.*] 2. CONTRACTS (§ 129*)-PUBLIC POLICY-BANKRUPTCY LAWS. An agreement by an attorney, who in the interests of certain clients and for his own pecuniary profit desired that a debtor should be put into bankruptcy, with a creditor to execute a petition to that end, in consideration whereof the attorney agreed to personally pay the creditor's claim, is not invalid as against public policy. [Ed. Note.-For other cases, see Contracts, Dec. Dig. § 129.*] 3. CONTRACTS (§ 139*)-INVALIDITY-PARI DELICTO. Assuming that the contract was invalid, the attorney and creditor were not in pari delicto, so as to permit the attorney to make defense to the action of the creditor for the claim agreed to be paid. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 684-700; Dec. Dig. § 139.*] Appeal from Trial Term, New York County. Action by William Bernard, a corporation, against Isaac Fromme. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted. Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ. Wales F. Severance, for appellant. SCOTT, J. Plaintiff appeals from a judgment dismissing its complaint upon the trial, but before the introduction of any evidence. The complaint alleges as a first cause of action that defendant, an attorney, being the attorney and counsel for one Rose F. Shanley, and also representing certain of her creditors, requested plaintiff, also a creditor of said Shanley, to join with others in a petition for the purpose of having said Shanley adjudicated a bankrupt, and promised plaintiff, if it would join in such petition, he (defendant) would personally pay plaintiff's claim against said Shanley; that defendant represented that it would be to his advantage to have the petition filed, in view of the fact that he and his clients would be enabled to receive various moneys by reason of the bankruptcy proceedings, and out of the bankrupt's estate, and from the receiver, and that the defendant would be enabled to receive certain fees and compensation in and about *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the said legal proceedings; that plaintiff complied with this request, and signed the petition, which was used with the result that Shanley was adjudicated a bankrupt, and a receiver of her property was appointed; that defendant by reason of the premises received certain moneys, but has refused to pay plaintiff the amount of his claim. The complaint contains a second count, similar in all respects to the first, except that it is based upon the claim of another creditor, alleged to have been assigned to plaintiff. The motion to dismiss at the opening of the trial was equivalent to a demurrer to the complaint for general insufficiency. The complaint must therefore be construed most favorably to the plaintiff, and its allegations must be taken as true. The dismissal is sought to be sustained upon the ground that the contract sued upon was illegal and contrary to public policy, and therefore unenforceable. Reduced to the plainest terms, that agreement was one by an attorney, who, in the interest of certain clients and for his own pecuniary profit, desired that a debtor should be put into bankruptcy, solicited plaintiff, a creditor, to execute a petition to that end, in consideration whereof he agreed to personally pay the plaintiff's claim. It may be that it was reprehensible for the attorney, because he was an attorney, to make such a promise in order to earn the fee and compensation which might be expected to flow to him from the bankruptcy proceedings; but it was not illegal for plaintiff to consent to sign the petition, or to agree to accept from the attorney personally, not from the bankrupt or her estate, the amount of his claim. Such an agreement did not tend to defeat the intention of the bankruptcy statute, because it had no tendency to prevent the due and proportionate distribution of the bankrupt's estate among her creditors. A very different question is thus presented from that considered in numerous cases wherein a creditor, in consideration of a secret promise for the payment of his claims, has signed or joined in an application for the bankrupt's release. So, too, a very different case would be presented if the agreement had been that the bankrupt herself would pay plaintiff's claim in full. To join in a petition to cast the debtor into bankruptcy was in entire accord with the bankruptcy law, and was an act calculated to secure equality of payment among her creditors. As we find nothing in the agreement as pleaded to defeat the operation of the bankruptcy law, or contrary to its spirit, we are unable to agree that the complaint was rightly dismissed upon that ground. If we assume that the agreement was one which the defendant, as an attorney, should not have made, still he and the plaintiff did not stand in pari delicto in that regard, and the defendant may not plead the impropriety of his own acts by way of defense to plaintiff's claim. Irwin v. Curie, 171 N. Y. 409, 64 N. E. 161, 58 L. R. A. 830. The judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur. HELLMAN v. FARRELLY. (Supreme Court, Appellate Division, First Department. May 7, 1909.) PRINCIPAL AND SURETY (§ 129*)-Discharge of SuretY-ESTOPPEL. A surety on a building contractor's bond is estopped to assert that excessive payments made by the owner to the contractor at the surety's request is a violation of the contract which discharges the surety. [Ed. Note. For other cases, see Principal and Surety, Dec. Dig. § 129.*] Appeal from Judgment on Report of Referee. Action by Myer Hellman against Stephen Farrelly, as ancillary receiver of the City Trust, Safe Deposit & Surety Company of Philadelphia. From a judgment for plaintiff, entered on a report of a receiver, defendant appeals. Affirmed. Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and CLARKĖ, JJ. Frederick J. Swift, for appellant. INGRAHAM, J. Upon the first trial of this action the court dismissed the complaint upon the pleadings and upon the plaintiff's opening. On appeal to this court the judgment entered upon such dismissal was reversed, and a new trial ordered. 111 App. Div. 879, 98 N. Y. Supp. 51. We there held that: "In the circumstances disclosed it evidently appeared to be the interest of the surety to have the provisions with respect to reserving part of the amount earned waived, and likewise with respect to the time of performance. Having consented to these modifications at the instance of its principal, and the plaintiff having acted thereon, manifestly to his prejudice, if the consent and waiver were now to be repudiated, the defendant is estopped from contending that these modifications with respect to performance discharged it from all liability." Upon the new trial before a referee judgment was awarded to the plaintiff. The referee found that on the 7th of December, 1898, the plaintiff entered into a contract in writing with one Blake, a copy of which is annexed to the amended complaint, and that by that contract Blake undertook to excavate the rock upon certain real property for a price fixed, which was based upon the estimated amount of rock to be excavated as 23,823 cubic yards, and that the sum of $1.20 per cubic yard was a proper sum to pay for such excavation, and that Blake, as principal, and the City Trust, Safe Deposit & Surety Company of Philadelphia as surety, executed a bond conditioned upon the performance of the conditions and covenants by Blake on his part to be performed under said contract; that the plaintiff made various. payments to Blake as the work progressed; that from the inception of the work performed under said contract by Blake the said City Trust, Safe Deposit & Surety Company of Philadelphia knew that the sums periodically paid by the plaintiff to Blake were ascertained and computed by the plaintiff from the certificates of the engineer by *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes multiplying the number of cubic yards specified in said certificates by the sum of $1.20, and that such several certificates did not specify the amount earned by said Blake during the periods covered by them respectively in money, and that early in the progress of the said work the said corporation specifically requested the said Hellman to continue making such payments to Blake for each cubic yard excavated and removed as shown by the certificates of the said surveyors; that at the time of making such request the said corporation knew that there was a question whether the amount of material to be excavated had not been under estimates, and it made such request with the full knowledge that payments at that rate might result in the advancement to Blake for the time being of a larger proportion of the contract price than had actually been earned by him, but in the belief that, if such payments were made to the said Blake, it might enable him to assemble the plant and employ the labor essential to the carrying out of such contract on his part; that "the time of the performance of said contract on the part of Lawrence E. Blake, as provided by its terms, was with the full knowledge and approval and consent of the City Trust, Safe Deposit & Surety Company of Philadelphia extended from time to time, and at the request of the City Trust, Safe Deposit & Surety Company, and with the consent of this plaintiff, said Lawrence E. Blake was permitted to and requested to continue performance of said contract on his part for the benefit of all concerned, and did with the acquiescence, knowledge, and consent of said company continue to perform the same until on or about the 12th of May, 1900." He further found that Blake, on or about the 12th day of May, 1900, wholly abandoned performance of said contract, and refused and neglected to proceed therewith, and to supply a sufficiency of materials or workmen to complete the same and to continue its progress, and thereupon the City Trust, Safe Deposit & Surety Company and Blake were notified of said default by the plaintiff, and of the plaintiff's intention to complete the same; that the plaintiff then entered into a contract to complete the same, which was submitted for approval by the City Trust, Safe Deposit & Surety Company of Philadelphia before the work was done thereunder, and said work was completed pursuant to its terms without objection on the part of the said the City Trust, Safe Deposit & Surety Company of Philadel phia, and that the cost of that work under said contract was $38,844.76, or $10,344.76 in excess of the contract price, which is an amount in excess of the bond given by the defendant, which was $10,000; and, as a conclusion of law, that the plaintiff performed all the terms and conditions under said contract on his part to be done and performed, except in so far as performance of the conditions. thereof was waived by the said the City Trust, Safe Deposit & Surety Company and judgment was awarded to the plaintiff against the trust company for the sum of $10,000. The opinion of the referee, I think, satisfactorily disposes of all the points raised by the defendant upon this appeal. It is a mistake to assume that the liability of the defendant is based upon a modification of the original contract between plaintiff and Blake. By the contract |