Dueber Watch-Case Manufacturing Co. v. Keystone Watch-Case Co.

Majority

p. 342

DUEBER WATCH-CASE MANUF’G CO. v. KEYSTONE WATCH-CASE CO. et al.

(Supreme Court, General Term, First Department.

December 16, 1892.)

Headnote

Bill of Particulars—Affidavit by Attorney. A motion for a bill of particulars of plaintiff’s claim, founded on an affidavit made by defendant’s attorney, should be denied, though defendant is-a foreign corporation, and all of its officers are without the state, and the attorney has charge of the action, since he cannot know that defendant needs the particulars claimed, or that it has not in its possession all the facts which it seeks to compel its adversary to disclose.

Appeal from special term, New York county.

Action by the Dueber Watch-Case Manufacturing Company against the Keystone Watch-Case Company and others for damages for an alleged boycott and conspiracy. Defendant Keystone Watch-Case Company moved for a bill of particulars, and its motion was granted in part and denied in part. - From so much of the order as denied the motion said defendant appeals. Affirmed.

For decision at special term, see 21 N. Y. Supp. 311 .

Argued before VAN BRUNT, P. J., and O’BRIEN and BARRETT, JJ.

George Carlton Comstock, (Leonard S. Wheeler, of counsel,) for appellant.

Wilber & Oldham, for respondent.

The application'for a bill of particulars of the plaintiff’s claim was granted in part and denied in part. The defendant the Keystone Watch-Case Company appeals upon the ground that the motion should have been granted in its entirety. We think, however, that the motion should have been denied in its entirety, for the reason that it was not founded upon an affidavit made by the defendant. The only affidavit upon which 'the motion was founded was that of the defend

p. 343

ant’s attorney, and it has been settled, by repeated adjudications, that such an affidavit is insufficient. The only reason given by the attorney why this affidavit is not made by his client is that the defendant whom he represents is a foreign corporation, and all of its officers are without this state, and that he (the attorney) has charge of this action. The attorney cannot know that the defendant needs the particulars which it claims, or that it has not in its possession all the facts -which it seeks to compel its adversary to disclose. The fact that the defendant is a foreign corporation does not affect or vary the ordinary rule which governs upon this subject, and there is no more reason why the affidavit upon which such , a motion is based should not be made by its officers than by an individual defendant, or by the officers of a domestic corporation. As the plaintiff has not appealed from so much of the order as granted the motion for a bill of particulars in part, we can only affirm the order appealed from, with costs. Order appealed from accordingly affirmed, with costs and the usual disbursements. All concur.