Majority
p. 148WINCHESTER v. BROWNE. N. Y. Supreme Court, First District, Chambers; August, 1890.
Headnote
1. Pleading; making reply more definite and certain.] Where plaintiff has evaded compliance with an order, requiring him to reply to new matter set up in the answer, by departing from the State and.' permitting his attorney to verify the reply putting in issue facts within plaintiff's personal knowledge, a motion to compel plaintiff' to make the reply served more definite and certain will be granted to the extent that the original order was authorized, where it is shown that otherwise defendant will be remediless.2. The same; allegations as to proceedings in foreign States] Plaintiff cannot be compelled to reply to allegations of new matter in the answer setting forth the details of legal proceedings had in another State.[1]
[Following Schofield v. Demarest, 56 Hun, 254 .]
Motion to compel plaintiff to make his reply more definite and certain.
The material facts appear in the opinion.
Albeit & Fuller, defendant’s attorney, for the motion.
A. Walker Otis, plaintiff’s attorney, opposed.
The plaintiff’s attorney has certainly shown great ingenuity in seeking to find a way to avoid compliance-with the order, which directed the plaintiff to serve a reply to certain new matters set up in the answer. Many of the-allegations of the answer, to which the plaintiff was required to serve a reply, consisted of allegations of fact which were presumptively within the knowledge of the plaintiff. It is-charged, and not denied, that the plaintiff came to this city from another State, and conferred with his attorney in regard to the preparation of the reply, that the attorney thereupon.
p. 149
«drew the reply, which was served, in which the plaintiff is made to allege that he has no knowledge or information ■sufficient to form a belief as to many matters of which it must be presumed he has personal knowledge. The plaintiff •could probably not have verified this reply without making himself liable to a prosecution for perjury, and he left this ■State without verifying it; and thereupon the plaintiff’s attorney himself verified the reply, and served it. It seems •to me that the course pursued was adopted for the express purpose of evading the order, which required the plaintiff to serve a reply. Upon the motion for the order requiring service of a reply no good reason was given why the defendant should be put to the great trouble and expense of proving allegations in the answer concerning which the plaintiff must have personal knowledge. The order was accordingly made, and the object of the order was not to require service ■of a reply which should set forth how much the plaintiff’s attorney did not know about certain matters, but how much the plaintiff himself did know about them. It may be, as was contended by plaintiff’s attorney on the argument of this motion, that the course adopted by him is authorized by the ■Code, and that the defendant is remediless. I have some doubt myself whether obedience to the order can be enforced by a motion like the present one, to make, the reply more •■definite and certain. I think, however, that the defendant is entitled to some relief in this matter, and it would seem ■that unless he can have it through the present motion, he cannot obtain it at all. I have concluded, therefore, though with some hesitation, to1 grant the motion in part, with ten ■dollars costs. The whole of the motion cannot be granted, because since the decision of the motion to compel the plaintiff •to serve a reply my attention has been called to the case of Schofield v. Demarest ( 55 Hun, 254 ), and I am of the opinion that so much of my order as required the plaintiff to reply to the allegations of the answer which set forth the details of •certain legal proceedings in other States was unauthorized» The parts of the motion which under this decision must be
p. 150
denied are as follows: In subdivision two, the following; clause, “ and to the paragraph of said amended answer which describes the parties to the proceedings.” In subdivision-three, the following clause, “ the allegation of the said amended answer containing the description of the parties and the-proceedings described therein.” Also in said subdivision three the following words, “and whether the parties therein are correctly described, whether the court did take the proceedings therein described, and whether the result was as. therein described.” In subdivision four the following words, “ that paragraph eight of such reply be made more definite, and certain in the same particulars as already prayed for above-in reference to paragraphs six and eleven.” Except as above; specified, the motion will be granted.