"We are therefore of the opinion that, assuming, as we must, this plaintiff to be a bona fide resident of the state of New York, the Supreme Court could not refuse to hear his case and had no right to dismiss it.'' It is true that in the case of Meacham v. Jamestown F. & C. R. R. Co., supra, at page 353, 105 N. E. 655, it was said: "There may conceivably be exceptional circumstances where resort to the courts of another state is so obviously convenient and reasonable as to justify our own courts in yielding to the agreement of the parties and declining jurisdiction." But this has no application in the present controversy, it being practically conceded that the plaintiff has no remedy in Russia, in the courts of which country the defendant would confine him. Moreover, jurisdiction over the defendant cannot now be obtained in that country. Under these circumstances, to give effect to the jurisdictional clause would mean that no action could be brought upon the policies. Assuming that a jurisdictional clause of this character will be given effect to prevent grave injustice, we have not here a situation in which such a doctrine can be invoked. We have a case in which it would be unjust to allow the clause to be invoked. It is argued that the failure to enforce the jurisdiction clause might result in a double recovery, inasmuch as, according to defendant, a Russian court would not consider itself bound by a judgment in these actions. However, so far as Russia is concerned, it is apparent that no satisfaction could be obtained there, and it is to be assumed in the other jurisdiction recoveries in these actions would be a defense. Moreover, if it be otherwise, nothing that can be decided in these cases would protect defendant. In Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149, 147 N. E. 703, there was a danger of double recovery because of the inability of the directors to show authority to collect assets. In this case plaintiff's right to sue will presumably be evidenced by his possession of policies which will be surrendered upon payment. In Russian Reinsurance Co. v. Stoddard, supra, it is said: "At least in actions at law, when other possible claimants could not be brought into court, the court has ordinarily not regarded such danger as a sufficient ground to refuse to take jurisdiction of an action to enforce rights against a resident of this state which a plaintiff can establish by competent evidence. "240 N. Y. at page 155, 147 N. E. 704. [3] As to the decision that the second alleged causes of action are insufficient for failing to plead the Russian law, we are not in accord with the Special Term. An action to recover the consideration paid on repudiation of a contract is in character such as not to require the plaintiff to invoke, for its justification, any foreign law. In Monroe v. Douglass, 5 N. Y. 447, at page 452, the court said: (217 N.Y.S.) The laws of the country to whose courts a party appeals for redress, furnish, in all cases, prima facie, the rule of decision, and if either party wishes the benefit of a different rule or law, and prove it." he must aver See, also, Richard v. Credit Suisse, 124 Misc. Rep. 3, 206 N. Y. S. 150, affirmed by the Court of Appeals. That was an action for money had and received, because of a total failure of performance. It was there said: "The burden of pleading the Polish law, if the law denied restitution, was upon the defendant." We are of the opinion, therefore, that it was not necessary for the plaintiff to plead the law of Russia, and that his complaint in both causes of action was sufficient. The orders should therefore be affirmed, in so far as they deny the motions to dismiss the complaints and each of the causes of action therein, on the ground that the court has not jurisdiction of the subject of the action, and for a stay; and in so far as said orders grant defendant's motions to dismiss the second causes of action, on the ground that they do not state facts sufficient to constitute causes of action, they should be reversed, with $10 costs and disbursements to the plaintiff upon each appeal, and the motions denied, with $10 costs. Order filed. All concur. (128 Misc. Rep. 49) SMYTH v. BOARD OF EDUCATION OF TOWN OF HEMPSTEAD. (Supreme Court, Special Term, Kings County. September 1, 1925.) Pleading 314-Court is not empowered to order bill of particulars in arbitration proceeding (Arbitration Law [Laws 1920, c. 275] § 6-a, as added by Laws 1923, c. 341; Civil Practice Act, §§ 4, 5, 247, and sections 1448-1469, as renumbered by Laws 1921, c. 199). Under Arbitration Law, § 6-a, as added by Laws 1923, c. 341, making arbitration proceeding a special proceeding, and Civil Practice Act, §§ 4, 5, 247, and sections 1448-1469, as renumbered by Laws 1921, c. 199, court is not empowered to order bill of particulars in arbitration proceeding. Proceeding by one Smyth, Jr., against the Board of Education of the Town of Hempstead. On defendant's motion for bill of particulars. Motion denied. Scudder, McCoun & Kerfoot, of New York City, for plaintiffs. CARSWELL, J. Upon consent the default of the plaintiff on a motion by the defendant for a bill of particulars is opened. The motion for a bill of particulars is made in an arbitration matter. The plaintiff opposes it on the ground that there is no power in the court to order the giving of a bill of particulars in such a proceeding. An arbitration proceeding is a "special proceeding," under section 6-a of the Arbitration Law (Laws 1920, c. 275, as added by Laws 1923, c. 341). Matter of Interocean Mercantile Corp'n, 207 App. Div. 164, 201 N. Y. S. 753. This holding was due to a legislative amendment following a decision that an arbitration proceeding was not a special proceeding. Matter of Interocean Mercantile Corp'n, 204 App. Div. 284, 197 N. Y. S. 706; Id., 236 N. Y. 587, 142 N. E. 295. 1. Under section 247, Civil Practice Act, this court is "authorized to make an order in the action upon notice," directing the service of a bill of particulars of a claim to the adverse party. An action is defined in section 4, Civil Practice Act, and refers to "an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 5, Civil Practice Act, defines special proceeding as follows: "Every other prosecution by a party for either of the purposes specified in the last section [section 4] is a special proceeding." An arbitration proceeding is not "an ordinary prosecution in a court of justice." It is not, therefore, an action. The court's power under section 247, Civil Practice Act, to order a bill of particulars being limited to an action, an order may not be made in this special proceeding, to wit, an arbitration proceeding. 2. A broader ground leading to the same result is that proceedings in arbitration are provided for with completeness in the Arbitration Law and sections 1448-1469, Civil Practice Act (as renumbered by Laws 1921, c. 199), and no right to invoke the technical practice of courts of law and assimilate the same to the more informal procedure prescribed in arbitration proceedings is permissible, unless there is a statutory provision expressly authorizing such resort to courts of law and such other procedure. There is no statutory authorization for the ordering of a bill of particulars in an arbitration proceeding, such as there is now for the permitting of the issuance of a commission in arbitration proceedings, following the statutory making of an arbitration proceeding a special proceeding within the Civil Practice Act. The Legislature has not made an arbitration proceeding an action within. the Civil Practice Act. The moment the Legislature makes it an action within the Civil Practice Act, we may have incorporated (by such reference and definition) into arbitration proceedings all the practice procedure prescribed for courts of law. This, however, has not as yet been done, except in so far as the legislation with respect to what constitutes a special proceeding has accomplished it. The language, spirit, and purpose of the Arbitration Law were to keep such proceedings free from the technical practice of courts of law, and to (217 N.Y.S.) avoid recourse to formal procedure required in court actions. Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 272, 275, 130 N. E. 288. Of like purport are the decisions holding that it is for the arbitrators to construe the submission and determine its scope. Amalgamated Association of Street & Electric Railroad Employees of America v. United Traction Co., 196 App. Div. 206, 188 N. Y. S. 353; Itoh & Co., Lim., v. Boyer Oil Co., Inc., 198 App. Div. 881, 191 N. Y. S: 290. The motion is denied. (Supreme Court, New York County. December, 1925.) General rule, with limited exceptions, is that examination before trial will be allowed only as to matters respecting which examining party has burden of proof. 2. Discovery ~30. Under Arbitration Law (Laws 1920, c. 275) § 6-a, as added by Laws 1923, c. 341, examination of a party before trial cannot be had in arbitration proceeding. 3. Arbitration and award ~31. Courts may not indirectly interject their rules of procedure or evidence into an arbitration, except so far as clearly warranted by statute or necessity. 4. Discovery 82-Inspection of books and papers may not be had in arbitration proceeding. Inspection of books and papers may not be had in arbitration proceeding, but arbitrators, can determine whether party's records should be opened for inspection, and what should be implied from his failure to afford inspection. In the matter of Isador Schwartz. Application for an order directing a party to an arbitration ordered to proceed by the court to appear for examination before trial, and providing for an inspection of its books and records. Application denied. Hedges, Ely & Frankel, of New York City (David Cohen, of New York City, of counsel), for the motion. I. Gainsburg, of New York City (Fred D. Kaplan, of New York City, of counsel), opposed. GAVEGAN, J. The Legislature has declared an arbitration proceeding to be a special proceeding. Arbitration Law (Laws 1920, c. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 275) § 6-a (as added by Laws 1923, c. 341); Matter of Interocean Mercantile Corporation, 207 App. Div. 164, 201 N. Y. S. 753. [1, 2] Though a commission may issue for the purpose of obtaining depositions of witnesses to be used before the arbitrators, this does not necessarily imply that the statutory provisions relating to taking the deposition of a party before trial are applicable to arbitration proceedings. The general rule is that an examination before trial will be allowed only as to matters in reference to which the examining party has the "burden of proof." The exceptions are few and of limited application. Furthermore, a party may be examined before trial as to nothing but what is "material," in view of the "issues." To fix the scope of such an examination it is indispensable that the court have before it the "pleadings" of the parties. Otherwise there is no basis on which to proceed, no "issues joined." In this department particularly the court is required to define the scope of such an inquiry, in order that it may be properly confined to the issues as to which the examining party has the burden of proceeding with proof. Where there are no pleadings and no issues, as those terms are understood in our courts, it is impossible to intelligently comply with the requirement that the court fix the scope of examination. dence. Furthermore, arbitrators need pay no attention to rules of eviThey are not confined to what a court of law would conceive to be "material." Before them there is no definition of "issues" by "pleadings," and, accordingly, no basis for fixing the scope of examination of a party before trial. Nor is the "burden of proof" a conception of any concern to them. [3] Courts may not indirectly interject their rules of procedure or rules of evidence into an arbitration excepting, in so far as clearly warranted, by statute or necessity. Otherwise fundamental, motivating concepts as to informality and freedom from requirements of procedure and of proof would be nullified. The prospect of a speedy determination unhampered by legal technicalities is of prime importance. to those contemplating arbitration. The same reasoning does not apply to an order directing a commission to issue for the purpose of obtaining the deposition of a witness, whose attendance at the trial is not to be expected, in view of special circumstances which are made. to appear. As to interrogatories to be propounded to such a witness, the court need go no farther than to ascertain that they relate to matters apparently relevant, need go no farther than ordinarily it might be expected that arbitrators would go. What has been said is in harmony with the determination of Mr. Justice Carswell in Smyth v. Board of Education, 217 N. Y. S. 231, that a bill of particulars may not be required by a court order in an arbitration proceeding. He pointed out that "proceedings in arbitra |