Watertown Paper Co. v. West — 3 A.D. 451

Majority

p. 451

Watertown Paper Company and William Marshall Paper Company, Appellants, v. George West, Respondent, Impleaded with Ernest A. Walter and Others.

Headnote

Bill of particulars—when a motion therefor is premature.

Where a motion is made by the defendant in an action for a bill of particulars and the defendant has not answered nor demurred, and there is no allegation in the moving papers that a bill of particulars is necessary to enable the defendant to prepare his answer, the motion is prematurely made and should be denied.

Appeal by the plaintiffs, the Watertown Paper Company and another, 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 17th day of February, 1896, granting the motion of the defendant West for a bill of particulars in the action.

The action was brought to set aside a general assignment- for the benefit of creditors as fraudulent and void as against the plaintiffs.

Joseph A. Arnold, for the appellants.

Charles de 3. Brower, for the respondent.

It appears by the affidavit upon which this motion was made that this defendant has not answered or demurred or otherwise moved in reference to the complaint since the same was served upon him. There is no allegation in the moving papers that a hill of particulars is necessary to enable the defendant to prepare his answer; and it is quite evident that it is not, as he can deny, either expressly or upon information and belief, the allegations contained in the complaint. We think, therefore, that this motion was prematurely made, and that at this stage of the action the facts necessary to be alleged and proved were not before the court to justify the granting of a bill of particulars.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.