p. 29William Almon Wolff, Appellant, v. Charles Kaufman, Respondent.Headnote
Bill of particulars, when not necessaiy to enable a defendant to plead,—excuse of absence from, the State, as a reason for an affidavit being made by the attorney instead of by the party, when insufficient.A motion by the defendant for a bill of particulars of the plaintiff’s claim will not be granted on the ground that it is necessary to enable the defendant to plead, where the affidavit, made by the defendant's attorney, alleges that the defendant has fairly and fully stated his case and that the attorney has advised him that he has a good and substantial defense upon the merits, as the affidavit shows that the bill of particulars is not necessary for the purpose for which it is asked.
An allegation in the affidavit that the reason why it is made by the defendant’s attorney instead of by the defendant, is that the latter is not now within the city, county and State of New York, where the deponent resides, is insufficient to show the inability of the defendant to make the affidavit in person, as it would be entirely true if the defendant had gone to Jersey City and returned immediately after the affidavit was made.
Appeal by the plaintiff, William Almon Wolff, 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 23d day of July, 1901, granting the defendant’s motion for a bill of particulars of the plaintiff’s claim.
J. Aspinwall Hodge, Jr., for the appellant.
Morris J. Hirsoh, for the respondent.
Two conclusive reasons appear why this order should be reversed : (1) The affidavit, which is made by the attorney for the defendant, states in terms that the defendant has fully and fairly stated his case and that he has advised him that he has a good and substantial defense upon the merits. This application is for a bill of particulars to enable the defendant to plead, but if his attorney has become possessed, as he swears he is, of sufficient facts showing a good defense to plaintiff’s cause of action, then he does not need a bill of particulars to enable him to plead ; (2) the affidavit is made by the attorney,.and his statement of the reason why he makes it instead of
p. 30the defendant is that the latter is not now within the city, county and State of Hew York where deponent resides. This is entirely insufficient as a statement showing the inability of the defendant to make the affidavit in person. It would be entirely true if the defendant had crossed the river into Jersey City and returned immediately after the affidavit was made. Applications of this character are required to be made by the party, and the observations made by Mr. Justice Bartlett on
Hoeninghaus v.
Chaleyer ( 22 N. Y. St. Repr. 528 ) have appropriate application to the facts presented upon this appeal. The bill of particulars which has been served seems to be insufficient in specifications, and quite likely the defendant may show himself entitled to a further bill before the trial of the action,
It follows that the order should be reversed, with ten dollars costs and disbursements to the appellant, and motion denied, with ten dollars costs.
Present — Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ.; Ingraham, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.