Mayer v. Mayer — 51 N.Y.S. 1079

Majority

p. 1079

MAYER v. MAYER.

(Supreme Court, Appellate Division, First Department.

May 20, 1898.)

Headnote

Pleading—Bill of Particulars—Affidavit of Attorney.

Upon a motion for a bill of particulars, an affidavit by the attorney only, giving no reason why it was not made by the moving party himself, is insufficient.

Appeal from special term.

Action by Katherine Mayer against Charles F. Mayer. From an order directing service of bill of particulars, defendant appeals.

Reversed.

Argued before BARRETT, RTJMSEY, McLAUGHLIN, and O’BRIEN, JJ.

I. T. Sackett, for appellant.

J. H. Seymour, for respondent.

The affidavit upon which the motion for a bill of particulars is based was made by the attorney only. No reason is given why it was not made by the plaintiff. It has often been held that such an affidavit is entirely insufficient to warrant the granting of a bill of particulars. Van Olinda v. Hall, 82 Hun, 357 , 31 N. Y. Supp. 495 ; Gridley v. Gridley, 7 Civ. Proc. R. 215.

For that reason, the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.