Watertown Paper Co. v. West — 38 N.Y.S. 229

Majority

p. 229

(3 App. Div. 451.)

WATERTOWN PAPER CO. et al. v. WEST et al.

(Supreme Court, Appellate Division, First Department.

April 10, 1896.)

Headnote

Pleading—Bill op Particulars.

Defendant’s motion for a bill of particulars, made before answering, demurring, or otherwise moving in reference to the complaint, was prematurely granted, there being no allegation that such bill was necessary to enable defendant to prepare his answer.

Appeal from special term, New York county.

Action by the Watertown Paper Company and another against George West and others to set aside a general assignment. From an order granting the motion of defendant West for a bill of particulars, plaintiffs appeal.

■ Reversed.

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

J. A. Arnold, for appellants.

C. De H. Brower, for 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 bill 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 $10 costs and disbursements, and the motion denied, with $10 costs. *