American Credit Indemnity Co. v. Bondy — 17 A.D. 328

Majority

p. 328

The American Credit Indemnity Company, Appellant, v. Simon M. Bondy, Respondent.

Headnote

Bill of particular's — as to allegations of special damage in a complaint for libel — a motion f 'or, befrn'e service of an answer, is premature if to prepare the defense — when not necessary to prepare an answer. . .

' Where no answer has been served, a motion by the defendant for a bill of particulars, upon the ground that it is necessary and material for his defense, is premature and must he denied, as it cannot he said that a defense will be made until an issue is. raised by the service of an answer.

Where, on ah application for a bill of particulars to enable the defendant to answer as to special damage alleged in the complaint, the defendant in his moving affidavit states that he is ignorant of the particulars of the losses alleged and has no means of knowing of any losses suffered by the plaintiff, the motion should not he granted, as the -defendant, under the circumstances, may deny that he has any knowledge or information sufficient to form a belief as to the allegations in question.

Appeal by the plaintiff, The American " Credit Indemnity Com- ■ pany, from an order, of the Supreme Court, made at the New York Special Term and'entered in the office of the clerk of the county of New York on the 9th day of March, 1897, granting the defendant’s motion for a bill of particulars.

John Vernou Bouvier, Jr., for the appellant.

S. L. Samuels, for the respondent.

The action was brought to recover damages for an alleged libel. ’ The hill of particulars granted was with reference to- certain allegations of special damage. No answer had been served when the order appealed from was made. The defendant stated in his affidavit

p. 329

need on the motion that a bill of particulars was necessary and material to his defense in the case, and to enable him to answer, as he was advised by his counsel.

The order was prematurely granted if based upon the ground that it was necessary for the purpose of the defense of the case. It could not be said any defense would be made until an issue was raised by the service of an answer. The order cannot be supported upon this ground. (Watertown Paper Co. v. West, 3 App. Div. 451 .)

The only ground upon which the order could be made was that it was necessary to enable the defendant to answer. The defendant stated that he was advised by counsel that it was so necessary, but we are of the opinion that such advice was not well considered. The defendant stated that- he was ignorant of the particulars of the losses alleged, and had no means of knowing of any losses suffered by the plaintiff. This being assumed as true, we see no reason why he could not, without a bill of particulars, have denied any knowledge or information sufficient to form a belief as to the allegations in question. (Code Civ. Proc. § 500.) That section did not require him to deny on i/nforrnation and belief. He might properly deny in the language of the section, and was not obliged to go further.

We think this order was improperly granted, and should be reversed, with ten dollars costs and disbursements.

Patterson, O’Brien, Ingraham and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.

Cases cited

Watertown Paper Co. v. West 3 App. Div. 451 N.Y. App. Div. 1896-04-10 p. 329