Mungall v. Bursley — 51 A.D. 380

Majority

p. 380

Henry Mungall and Others, Respondents, v. Ira L. Bursley, Appellant.

Headnote

Motion—when an attorney’s affidavit will be received thereon.

An affidavit of the plaintiffs’ attorney, read on a motion for a bill of particulars, which does not show that the attorney possesses any knowledge of the facts upon which the application for such bill of particulars is based, or that the plaintiffs are not informed of the matters in respect to which such bill .of particulars is asked, affords an insufficient basis for the motion.

When the affidavit of an attorney will be received, considered.

Appeal by the defendant, Ira L. Bursley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of February, 1900, granting the plaintiff’s motion .for an additional hill of particulars.

Samuel It. Taylor, for the appellant.

John C. Goleman, for the respondents

The action is brought to recover the -purchase price of "a certain quantity of merchandise sold by the plaintiffs, who are residents of and doing business at Dumferline, Scotland. By answer the defendant set up certain counterclaims alleging a breach of the contract on the part of the plaintiffs in selling to other persons goods of which, the defendant was to have the exclusive right of parchase, and demanded damages for such breach of contract. The plaintiffs served a reply denying all the averments contained in the answer. The additional bill of particulars requires the defendant to furnish in detail the names of the persons, firms and corporations-to whom the plaintiffs sold goods in violation of the agreement setup in the answer, the dates when such sales were made, and the place, nature, quantity, quality and dimensions in each case.

The proof was insufficient upon which to base the order. The-affidavit is made by the attorney for the plaintiffs, and it is not therein shown that he possesses any knowledge of the facts upon which the application is based. The affidavit of an attorney will

p. 381

only be received when it is shown that he is the only person who has knowledge of the subject-matter of the litigation, or that it is not possible to obtain the affidavit of the party and that the attorney has received from the party full information of the subject-matter and makes full disclosure of what the information consists. Besides, there is nothing contained in the affidavit to show that the plaintiffs-are not informed of all the subject-matter in respect to which a bill of particulars is asked. Such affidavits have frequently been condemned as insufficient upon which to found aU order for a bill of particulars. (Dueber W. C. M. Co. v. Keystone W. C. Co., 50 N. Y. St. Repr. 417 ; Mayer v. Mayer, 29 App. Div. 393 ; Cohn v. Baldwin, 74 Hun, 346 .)

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

Present — Van Brunt,' P. J., Rumset, Patterson, Ingraham and Hatch, JJ.

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