KOSSOFF v. LITIN

In an action to foreclose a mortgage, the defendant alleged, by way of special defense, an agreement of amortization. The plaintiff, by motion for more specific statement, sought to compel the defendant to make the defense more specific by stating certain matters with respect to the agreement, and, if the agreement was in writing, by incorporating a copy thereof in the special defense. The motion for more specific statement was required to be denied. If the agreement was in writing, it would furnish the best evidence of the matters as to which more specific information was sought. The plaintiff should have made a motion for oyer under the provisions of section 124 of the Practice Book (1934). It seems, that if the defendant was unable to furnish a copy of the agreement alleged because the agreement itself was in the possession of the plaintiff or the plaintiff's attorney, a motion for its production for inspection under the provisions of section 76 of the Practice Book (1934) might furnish an appropriate remedy.

KING, J.

This is an action for the foreclosure of a second mortgage in the original principal amount of $7,200.

As a special defense, the defendant Sonia Litin, the present owner of the equity of redemption, has alleged, in effect, that in 1937 she entered into an agreement of amortization with the plaintiff which she has complied with and which is still in force and effect.

The plaintiff, in this motion, seeks to compel the defendant to make her special defense more specific by stating (1) the exact terms of the agreement, (2) the date it was entered into, (3) the parties to it and (4) whether it was oral or written; and, if written, by incorporating a copy thereof in the special defense of the answer.

It is apparent that if the agreement was in writing, it would speak for itself and would itself furnish the best evidence of most, if not all, of the matters as to which more specific information is sought.

Under these circumstances, the plaintiff should have made a motion for oyer under the provisions of section 124 on page 51 of the Practice Book (1934).

While this disposes of the motion for a more specific statement, it might be noted, in passing, that if, as indicated in the oral argument of the present motion for more specific statement, the defendant is unable to furnish a copy of such an agreement because the agreement itself is in the possession of the plaintiff or her attorney, a motion for its production for inspection under the provisions of section 76 on page 39 of the Practice Book (1934) might furnish an appropriate remedy.